Secondary Forms of Genocide and Command Responsibility Under the Statutes of the ICTY, ICTR and ICC. (International Criminal Tribunals for the Former Yugoslavia and Rwanda, International Criminal Court‪)‬

ABSTRACT This article examines the ways in which secondary forms of genocide and command responsibility have been integrated into the statutes of the ICTY, ICTR and ICC. These secondary forms of genocide are namely: conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide. The integration of the Genocide Convention into the statutes of the ICTY and ICTR and the overlaps of these provisions with those pertaining to general individual criminal responsibility have given rise to some confusion in the jurisprudence regarding the appropriate application of these provisions. Nonetheless, the decisions of the ad hoc tribunals have overcome the difficulties inherent in their statutes, and, as a result, the case law has contributed significantly to the development of customary international law in relation to both secondary forms of genocide and command responsibility for secondary forms of genocide. These developments, however, are not recognised in the provisions of the Rome Statute. Furthermore, although it may be regarded as an attempt to normalise the crime of genocide in international law, the omission in the Rome Statute of parts of the Genocide Convention leads to substantial and possibly insurmountable inconsistencies between the Rome Statute and customary international law.