Vile Crime or Inalienable Right: A Reply to Drumbl and Keitner

Professor Mark Drumbl has put his finger on a key conundrum: that early, “entrepreneurial” speech offers the best opportunity for genocide prevention because it is the speech that primes a society for genocide, but it is also far more difficult to define than blatant incitement, uttered on the brink of genocide. The problem was beautifully captured in metaphor by a witness at the ICTR’s “Media” trial, who said that the notorious radio station RTLM had “spread petrol throughout the country little by little, so that one day it would be able to set fire to the whole country.” [Mugesera or “Media” judgment, ¶ 436]. As the witness implied, the crime that matters most is spreading the petrol, not striking the match. I wrestled with this, and constructed a definitional model that captures the later drops of petrol, but not the first ones. Incitement to genocide must be limited to speech that calls for genocide, albeit in coded language, and it must be distinguished from hate speech, which is not an international crime. Wibke Kristin Timmerman has suggested that hate speech become an international crime, but I don’t agree – at least not for prosecution by international criminal tribunals. Hate speech is criminalized quite differently in various bodies of municipal law, often in idiosyncratic response to national history. International criminal law should not attempt to supplant this, in my view. And in response to Professor Chimène Keitner’s question, I would not argue for a customary international law prohibition against incitement to genocide, since a customary norm would likely be imprecise, and subject to the usual debate over when it has crystallized. Incitement to genocide should be clearly defined in international criminal law as the extraordinary crime that it is.



I was disappointed that the appeal decision in the Media case seems to set the threshold higher than I suggest, by finding that only RTLM broadcasts after April 1994, when the genocide began, constituted incitement to genocide. The appeals panel did not make it clear, however, whether it imposed this limitation simply for lack of evidence that the pre-April broadcasts “contributed significantly to the commission of acts of genocide” or for analytical reasons.



I share Mark’s skepticism that courts and tribunals will prosecute before a genocide takes place, and I agree that other methods, such as “information intervention” like radio jamming, have a much better chance of preventing or at least limiting genocide. Chimène suggests that before my test can be used for ex ante interventions, one would have to explain how that would work. When could state sovereignty be breached by radio jamming, who would identify incitement to genocide, and so on? Chimène is quite right. I admire the proposal that Jamie Frederic Metzl outlined in his article “Rwandan Genocide and the International Law of Radio Jamming,” as well as his arguments that the end of the Cold War removed some longstanding obstacles to such relatively low-cost, high-tech humanitarian interventions, so I punt to him. Metzl found it important, notably, that “a relative consensus can be maintained regarding the international definition of incitement.”



The criminal law should not be left out of the picture even if it cannot prevent genocide, as Mark points out, as it also has important expressive and didactic goals. At their best, international tribunals and courts take part in the contemporary effort to understand how and why atrocities are committed. So tribunals should focus not only on the defendants who bear great criminal liability and responsibility, but also on the crimes that did the greatest damage. Defendants should be prosecuted for the acts they committed that contributed to bringing about genocide and other atrocities – more than for the acts that didn’t really make much difference, or that must be stretched to fit a criminological template. For example, civilian political leaders should be prosecuted for conflict entrepreneurship, rather than for civilian superior liability, which is often an attempt to adapt command responsibility to a civilian context where it inherently doesn’t apply. This is why tribunals should focus on speech as a crime – difficult though that is – as the ICTR continues to do in the trial of the pop star Simon Bikindi, and as the ICTY is now doing in the trial of the propagandist Vojislav Seselj.



Chimène also asks how my reasonable possibility test compares with other criminal laws tests regarding probable consequences, and I cannot yet answer adequately – that useful question is now on my list for future inquiry.