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Unformatted text preview: 1 I NCHOATE C RIMES AND C RIMINAL R ESPONSIBILITY UNDER I NTERNATIONAL L AW T OM S TENSON “‘Well, General Clark, I warned [General Ratko Mladic] not to do it, but he didn't listen to me.’” – Testifying before the international tribunal at the Hague, General Wesley Clark recounts Slobodan Milosevic’s statement regarding the massacre of Bosnian Muslims at Srebrenica. 1 I. Introduction Prosecuting crimes against international law often entails complex analysis of guilt in those who partake in organized violations of international law. Culpability for crimes against international law may not be limited under customary law to those who actually carry out those crimes. Most nations prosecute inchoate acts (such as conspiracy and incitation) in their domestic criminal law. At times, the international community has prosecuted inchoate crimes. The international community has not, however, clearly stated whether or not inchoate crimes such as conspiracy or incitation (solicitation, as American law refers to it) to violate international law should be included in a statement of customary international law. Such inchoate crimes have at times been punished in international court or laid out in the statutes establishing such tribunals. 2 In order to establish custom under international law, one must establish customary 1 Elaine Sciolino, “Milosevic Trial Helps Clark Try to Gain Notice,” N.Y. TIMES, Dec. 17, 2003, at A1. 2 See, e.g. , Charter for the International Military Tribunal (IMT) [hereinafter Nuremberg Charter], Art. 6(a) & 6(c), Aug. 8, 1945, 58 Stat. 1544, 82 U.N.T.S. 280 available at http://www1.umn.edu/humanrts/instree/imt1945.htm (last visited Apr. 4, 2004); Convention on the Prevention and Punishment of the Crime of Genocide, art. 3, Jan. 12, 1951, 78 U.N.T.S. 277, 288 I.L.M. 761 available at http://www1.umn.edu/humanrts/instree/x1cppcg.htm (last visited Apr. 4, 2004); Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, art. 4, annexed to S.C. Res. 827, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/827 (1993) reprinted in 32 I.L.M. 1159, 1170 (1993), available at http://www.un.org/icty/basic/statut/statute.htm (last visited Apr. 3, 2004); Statute of the International Tribunal for Rwanda, art. 2, annexed to S.C. Res. 955, U.N. SCOR, 49th Sess., U.N. Doc. S/RES/955 (1994) available at http://www.ictr.org/ENGLISH/basicdocs/statute_old.html#statute (last visited Apr. 3, 2004); Rome Statute of the 2 practice and opinio juris . In this paper I wish to consider the historical background of inchoate crimes, the current practice in individual nations around the world, and the contemporary treatment under international law. The criminalization of inchoate crimes under domestic law is essentially universal, sufficient to establish customary practice. International courts have relied on inchoate crimes such that their acceptance should represent...
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