Fixing Persecution, Instigation, and Ordering

Chapter 9 examines the rift between the ICTY and ICTR regarding nonadvocacy speech and persecution and considers which position makes better sense. Consistent with the chapeau and relevant precedent, it concludes that hate speech not directly calling for action should qualify as persecution. This is especially true given the many flaws of Kordić, the sole judgment to support the contrary position. The chapter also explains how to fix the issues related to persecution, including disentangling it from incitement by severing its suggested jurisprudential link to the Civil Law and excising the unsupported and unprecedented “different forms of persuasion” requirement from the crime’s actus reus. Similarly, it explains that jurists need to clarify the “contribution” requirement, and it demonstrates that, in light of the proper calibration of responsibility, “substantial contribution” is the proper standard. Finally, this chapter recommends jettisoning ordering’s restrictive target-crime-commission requirement and including inchoate liability within the offense’s ambit.