Attempt, Conspiracy, and Incitement to Commit Genocide

In these brief commentaries to the U.N. Genocide Convention, I explore three criminal law modes of liability as they apply to the international crime of genocide. Part I analyzes attempt to commit genocide and uncovers a basic tension over whether attempt refers to the genocide itself (the chapeau) or the underlying offense (such as killing). Part I concludes that the tension stems from the fact that the crime of genocide itself is already inchoate in nature, since the legal requirements for the crime do not require an actual, completed genocide, in the common-sense understanding of the term, but only a prohibited act with the intent of destroying the group in whole or in part. Part II explores the curious fate of both conspiracy and incitement to commit genocide under current international criminal law. Conspiracy to commit genocide was applied at the ad hoc tribunals but rejected by the drafters of the Rome Statute, thus leading to serious confusion over its status under customary law, while incitement to commit genocide is burdened by uncertainty over its inchoate status. Part III then concludes with a brief, speculative discussion of state responsibility for genocide for these modes of liability.