Atrocity speech is a largely unsettled area of international criminal law, situated in a field of tension between criminalizing acts resulting from inflammatory speech on the one hand and the protection of freedom of expression on the other. Recent developments involving increased nationalism and populism have certainly helped to capture scholarly attention on hate crimes. As such, the publication of Gregory Gordon’s Atrocity Speech Law by Oxford University Press and the coinciding publication of Incitement on Trial by Richard Ashby Wilson by Cambridge University Press are timely products, reflecting the current academic interest in speech that is set in a context of armed conflicts, widespread or systematic attacks or genocide. Interestingly, both scholars arrive at a similar conclusion: Ashby Wilson suggests handling inciting speech under the preventive doctrine of inchoate crimes and completed crimes under ordering and complicity as forms of liability. Gordon, for his part, advocates the creation of a Unified Liability Theory that includes four general categories of speech offences: incitement, speech-abetting, instigation and ordering. This theory should, in the view of Gordon, be operationalized through the promulgation of a new treaty and/or an amendment of the Rome Statute of the International Criminal Court. Gordon sets an ambitious goal to replace the current patchwork of speech offences surrounding atrocity crimes. In doing so, he strives to reconcile free expression, mass violence prevention and doctrinal coherence. Not only does his book demonstrate how these ambitions can be achieved, it also aspires to have adverse effects on recent—and future—atrocity speech cases, including those in Myanmar, South Sudan and the areas controlled by the Islamic State. The legal recognition of dehumanization and conditioning through speech will hopefully prevent impunity for future cases of atrocity crimes. The saying ‘words kill’ comes to mind (p 25), and it is time for international criminal law to acknowledge the importance and accuracy of this proverb. Gordon admits that his research was born of frustration when he was working as a lawyer with the Office of the Prosecutor at the International Criminal Tribunal for Rwanda (ICTR) assigned to the Media team (Nahimana and Others (Media case)).1 In this position, he quickly realized that the modalities of atrocity speech crimes created significant liability loopholes. Moreover, he recognized a ‘fragmented and haphazard treatment’ (p 5) of the larger field of international hate speech law in both scholarship and jurisprudence, in addition to legal challenges of individual offenses dealing with speech uttered in support of mass violence. Rather than accepting the imperfection of this field of law, Gordon examines in detail the origin, legal definitions, jurisprudence and possible improvements for all crimes that originate in atrocity speech. Albeit discussing international criminal law, Gordon does not shy away from including case law from the European Court of Human Rights and national legislation into his overall analysis. He also makes great efforts to present the relevant historical cases from pre- and post-World War II. The book is divided into three large parts: Foundation, Fragmentation and Fruition. The first part is the largest of the three parts and contains the historical background (‘an historical sketch’ and ‘the birth of atrocity law’) as well as an in-depth analysis of domestic law. The author’s choice of focusing a lot of his research, and consequently many pages, on this first part of the book results in a rather unfortunate consequence that the actual problems of atrocity speech law are first comprehensively addressed on page 185 (starting with Chapter 5: ‘Problems Regarding the Crime of Direct and Public Incitement to Commit Genocide’, followed by Chapter 6: ‘Problems Regarding Persecution, Instigation, and Ordering’ and lastly Chapter 7: ‘The Liability Gap in Reference to Hate Speech and War Crimes’). While Gordon’s efforts in meticulously laying a solid foundation for later discussions are laudable, I, as an international criminal lawyer, had hoped to reach the core of the problems at a significantly earlier stage of the book. In particular, Chapter 2 on international human rights and domestic law, with a length of over 40 pages, albeit interesting and in part relevant for later discussions, would have benefited from stricter editing. At this early stage of the book, its relevance is unfortunately not always apparent. Later, Chapter 4 then generously refers back to the cases discussed in Chapter 2. From the reader’s perspective, it would have been preferable to incorporate the discussions of Chapter 2 into Chapter 4. Two minor faults of Chapter 2 deserve mentioning: Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) does not criminalize dissemination of ideas or incitement2 and Istanbul is not the capital of Turkey.3 These blunders can, however, easily be brushed aside as not being particularly significant or grave. Another, more serious, point of criticism concerns the choice of sources. For instance, in discussing the—for later analyses important—Ministries case, on page 41 (footnote 73), Gordon refers to a book by Larry May rather than the actual judgment as a source. Similarly, on the same page in footnote 79, for a discussion on the disintegration of Yugoslavia in 1991, Gordon provides reference to a journal article on ‘WTO Security Exception’ in the Utah Law Review rather than a high-quality scholarly publication on the history of Yugoslavia. There are numerous other examples that seem to suggest a general weakness of referencing, especially to primary sources. By way of example, take page 45 that discusses the acquittal of Vojislav Šešelj and the later appeal by the prosecution. Instead of providing a reference to the actual court documents of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Gordon refers to a New York Times article by the journalist Marlise Simons. Equally, page 57 (footnote 184), in mentioning the International Criminal Court’s (ICC) decision of no-case to answer against Kenyan Joshua Arap Sang, lists an online newspaper article instead of the relevant ICC court document. Moreover, in discussing the travaux préparatoires of the Genocide Convention on page 118, Gordon refers to a journal article of Matthew Lippman rather than the actual United Nations document (footnote 98). For a book of the calibre of Atrocity Speech Law, published by prestigious Oxford University Press and with a foreword of none less than Benjamin B. Ferencz, the former Nuremberg Prosecutor, short cuts such as the ones described above should not be expected. In the conclusion of Part I (p 165), Gordon summarizes how the ICTR adjudicated the offense of direct and public incitement to commit genocide. The Akayesu and Media case identified and defined the following legal elements: (1) direct, (2) public, (3) incitement and (4) the mens rea to incite and the intent to destroy one of the four protected groups of genocide. The decisions in Kambanda, Ruggiu, Niyitegaka and Kajelijeli helped crystallizing additional momenta: (1) encouraging incitement can constitute an independent act of incitement; (2) congratulations and praise of genocidal acts can be incitement; (3) warnings that violence will follow can be an act of incitement; and (4) non-imperative metaphors can constitute incitement. In discussing the case law of Nuremberg and the ad hoc international criminal tribunals, Gordon in Part I unravels incitement, ordering, instigation, and aiding and abetting. He powerfully demonstrates how the tribunals have blended offences and forms of liability in their case law on atrocity speech. In doing so, Gordon shows that atrocity speech law so far has been dealt with incoherently. He also confirms the need of a more comprehensive legal approach. His book will therefore, without a doubt, be extremely helpful to practitioners and scholars alike. Part II on Fragmentation (pp 183–269) then shows what the problems within the basic framework are. It is at this point that the book truly comes to life, and Gordon’s in-depth analysis of the case law reveals his great scholarly qualities. As already insinuated, these legal discussions should preferably have come at an earlier stage of the book. Gordon demonstrates that the scope of the requirement of ‘direct’ incitement remains inadequately defined (pp 186–8). Similarly, the ‘public’ element leads to a number of unresolved questions: what is ‘reasonable proximity’, how many are ‘a number of individuals’, what is ‘mass media’ and when does a meeting turn from being ‘private’ to becoming ‘public’ (pp 188–94)? Why is a speech at a roadblock in a city not public (Nahimana), but driving around on a rural road with a loudspeaker (Bikindi) is? Most problematic, case law has implied a causality for acts of incitement and ensuing violence. Gordon is also very clear—and rightfully so—that causation is not element in incitement law (pp 196–217, 282–91, 355). In my view, one of the book’s highlights—except for the innovative suggestions for fixing the current patchwork of atrocity speech law (see more below)—is the excellent discussion of the Media Appeals Chamber judgment (pp 232–9). Gordon’s insight into the case is remarkable and results in a scrupulous analysis of high quality. In very clear language, he shows that hate speech in its own right can amount to a crime. His analysis, culminating in a great table showing the split between the ICTR and ICTY approaches to persecution (p 239), is a veritable tour de force. Similarly, the ensuing analysis of the Šešelj Trial Chamber judgment (‘bizarre ruling’, p 242) is first-rate. Gordon forcefully demonstrates how the lawyers on the case extracted the wrong baseline information relevant to the Yugoslav conflict (p 241). In his conclusion on hate speech as incitement, Gordon suggests that the existing framework should be broadened to include seven distinct elements. These are: (1) purpose, (2) text, (3) (internal and external) context, (4) relationship between speaker and subject, (5) channel of communication, (6) temporality and (7) instrumentality (pp 295–301, 400–1). Alternatively, all elements could be organized as falling into three larger conceptual categories of content, circumstances, and medium (p 301). The ‘public’ element, a judicial creation of the ICTR, should also be fixed by discarding it altogether (p 294). Convincingly, Gordon shows that incitement undertaken in private gatherings can be just as effective and lethal as in public ones (pp 188–94; 292–5). Any aggravating aspect of the public element should, in his mind, be part of sentencing considerations rather than a liability factor. As to the current jurisprudential element of ‘direct’, Gordon considers it too vague and imprecise. Instead, he suggests a methodical classification of incitement techniques to include, among others, direct calls for destruction (p 285), dehumanization (p 286) and accusation in a mirror (pp 287–9). A figure on page 291 neatly describes all identified incitement techniques. Gordon further suggests fixing persecution. In drawing historical lines back to the often overlooked Otto Dietrich decision of the Nuremberg Military Tribunal (United States v von Weizsäcker (Ministries case) 1951), he demonstrates that hate speech alone, even if not explicitly calling for violence, should qualify as the actus reus for the crime against humanity of persecution (pp 308, 331). Correctly, Gordon points out that Article 7(1)(h) of the Rome Statute requires the connection of persecution to any crime within the jurisdiction of the ICC. Thus, if hate speech does not reach the threshold of crimes against humanity (part of a widespread or systematic attack) or occurs isolated and sporadically, the actus reus would not be fulfilled. In such cases, freedom of expression legitimizes the impunity of hateful speech. As to fixing instigation, future decisions by the international criminal courts must more consciously acknowledge the doctrinal divide between legal incitement and instigation (p 342). Currently, ‘instigation often suffers from a doctrinally messy conflation/confusion with incitement, an unsupported and unjustified actus reus add-on, and a schizophrenically formulated contribution element’ (p 252). Gordon further suggests adopting a ‘substantial contribution’ requirement for instigation (p 403). With regard to ordering, Gordon’s message is clear: expand it to include inchoate liability (pp 345, 347, 403). In Chapter 10, Gordon advocates the creation of a new offence, namely incitement to commit war crimes, building on his analysis in Chapter 7 of the liability gap regarding hate speech and war crimes. Chapter 7 provides several illustrative examples of the dehumanization of the victims in armed conflicts, ranging from the Philippine-American War to Abu Ghraib, Nanking, Guatemala, and to Trump and beyond. Dehumanization is an under-researched topic in international criminal law; Gordon’s deliberations make a valuable contribution to advancing further scholarly discussions on the matter. The suggested new offense would enable prosecution and punishment of commanders for orders, even if they are not followed by subsequent perpetration of war crimes by the troops. As the law stands to date, such incitement is not punishable and presents a regrettable normative void. The book’s Grand Finale is on Unified Liability Theory for atrocity speech law in Chapter 11. Gordon pledges a ‘more holistic and global restructuring’ (p 20) because the law so far ‘has been formulated in dribs and drabs over the years’ (p 20), offering no systematic or all-inclusive approach for a liability framework. The international criminal tribunals and courts have shoe horned atrocity speech law into the existing framework of crimes against humanity or as incitement to genocide. The law, ‘like a doctrinal Frankenstein’s monster’ (p 21), is thus incapacitated to capture the full range of unlawful verbal conduct. The Unified Liability Theory, the name of which appears to originate from a wordplay of Albert Einstein’s unified field theory (p 22), aims at releasing the core crimes from their customary moorings. This ambitious goal is, according to Gordon, achieved in separating the core crimes from specific categories of criminal liability. For historical reasons, incitement is linked to the crime of genocide only. Yet, there are no current reasons why such inchoate liability with regard to speech should be limited to genocide. Gordon urges a doctrinal expansion of liability (p 377) in order to connect speech to any core crime: incitement would apply to speech pledging, but not resulting in, causally related violence. Instigation would apply where causally related violence followed the hate speech act. Speech abetting could be charged if the speech was connected to acts of genocide, crimes against humanity, war crimes or (soon to come) aggression. Finally, ordering would be relevant for cases of speech commanding the commission of an atrocity crime in the context of a superior–subordinate relationship. These suggestions would ‘promote greater doctrinal cohesion and organization as well as streamline and systematize prosecutorial charging considerations’ (p 395). Gordon’s ambition of introducing a Unified Liability Theory does not end there. He also strives at creating a treaty that puts his theory into operation: the Convention on the Classification and Criminalization of Atrocity Speech Offenses, the blueprint of which is contained in the book (pp 378–81). Interconnected to this, Article 25 of the Rome Statute would have to be amended to include liability related to speech (pp 381–2). In his book Atrocity Speech Law, Gordon addresses a highly complex and unsettled area of law and suggests new theoretical approaches to it. He is mindful to stress the central role of speech in mass atrocity throughout his book; speech crimes are at the core of ‘the etiology of pernicious discrimination-focused out-group mass violence’ (p 376). Gordon chose a highly relevant and topical legal battle for which he deserves praise. All too often courts ignore that speech is crucial in ‘sparking, sustaining, and aggravating organized, large-scale, and severe human rights and humanitarian law violations’ (p 395). Gordon has, without a doubt, made a very valuable addition to scholarship in a direly under-researched area of law. This important publication will in the long run allow for a greater consistency in prosecuting atrocity speech and will thereby ‘serve as humanity’s alarm bell’ (p 395). Footnotes 1 ICTR-99-52. Gregory Gordon is currently an Associate Professor, the Associate Dean for Development/External Affairs and Director of the Research Postgraduates Program at the Chinese University of Hong Kong Faculty of Law. Before academia, he served as a prosecutor with both the US Department of Justice and the ICTR. 2 As asserted by Gordon at 64. Article 4(a) ICERD does not create a source of individual criminal liability. Rather, it contains a list of positive measures designed to eradicate all incitement to, or acts of, such discrimination. ICERD thus creates a state obligation to enact domestic laws. 3 As stated at 72. © The Author(s) . Published by Oxford University Press. All rights reserved. For permissions, please email: email@example.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Human Rights Law Review – Oxford University Press
Published: May 8, 2018
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