Citation

Greenfield DM. J. Crim. Law Criminol. 2008; 98(3): 921-952.

Copyright

(Copyright © 2008, Northwestern University School of Law)

DOI

unavailable

PMID

unavailable

Abstract

Jurists at the International Criminal Tribunals for Yugoslavia and Rwanda have erroneously determined that 'complicity in genocide' is identical to 'aiding and abetting' genocide. Accordingly. they theorize that complicity in genocide is not a crime itself, but merely a misplaced and superfluous liability provision for the crime of genocide. In reality, the two crimes are distinct and designed to capture very different perpetrators. One guilty of aiding and abetting genocide had as his very purpose the facilitation of the commission of genocide. A perpetrator of the crime of complicity in genocide, in contrast, may not have had genocide as his purpose. Instead, genocide may merely have been the foreseeable result of his actions. As such, one found guilty of aiding and abetting genocide must have the heightened, and difficult to establish, mens rea of the genocidaire–-what I term the 'specific intent specific motive nexus.' By comparison, one guilty of complicity in genocide need not have this heightened mens rea. Instead, a lesser mens rea such as malice or what I term the 'specific intent without specific motive,' should suffice to attach guilt. Failure to appreciate this difference creates a gaping loophole in international criminal law, providing unwarranted sanctuary to those who enable genocide.