Problems Regarding Persecution, Instigation, and Ordering

Chapter 6 explains that offence of hate speech as crime against humanity-persecution (CAH-persecution) is fragmented as the ICTR concluded that non-advocacy hate speech deprives the target group of fundamental rights so can be charged as CAH-persecution. But the ICTY disagreed in Prosecutor v. Kordić (2001), finding that non-advocacy hate speech is insufficiently grave to serve as the actus reus for CAH-persecution. The 2007 Media Case Appeals Chamber judgment failed to resolve the split. The ICTR’s approach to instigation, admixing Civil Law and Common Law conceptions, has puzzled jurists regarding its relationship to incitement. Moreover, given an ambiguous “contribution” element, recent jurisprudence has arguably saddled instigation with a “but for” causation requirement and has appended a doctrinally indefensible element to its base “prompting” actus reus: a “different forms of persuasion” requirement. The offense of ordering is problematic because it excludes inchoate liability -- criminalizing commands by a superior only if a subordinate actually carries them out.