Vile Crime or Inalienable Right: A Response to Susan Benesch

by Chimene Keitner

[Chimène Keitner is Associate Professor of Law, UC Hastings Law School.]

I’m delighted to join this conversation about Susan Benesch’s analysis of the international crime of incitement to genocide. As Susan’s title indicates, she seeks to distinguish this crime from the exercise of free speech rights guaranteed under U.S. law. Viewed in this light, her project forms part of an ongoing dialogue about the interaction between national and international criminal law. Below, I briefly summarize my understanding of Susan’s argument. I then identify two questions for further discussion in this forum and beyond.

Susan is concerned primarily with “major genocides with high degrees of civilian participation” (494 n.40). She observes that, historically, such genocides have been “carried out by state employees, albeit often aided by civilians” (495). Based on this observation, she characterizes incitement to genocide as “speech in the service of the state” (id.). Even “free speech devotees” (id.), she argues, should be loath to protect this kind of speech. However, the Genocide Convention does not provide a sufficient basis for differentiating between criminal speech and protected speech. Susan’s article aims to fill this gap.

Susan sets out to craft a definition of incitement to genocide that accounts for its central role in conditioning people to commit and accept violence (498–500). She endorses a constructivist view of genocide, and rejects “primordialist” accounts of identity-formation that, in her view, “excuse[] the international community from doing much to prevent the next massacre or genocide” (501). I found this part of the article intriguing, as I have spent a great deal of time puzzling through similar issues in the context of my study of nationalism. (See especially Chapter 5 of my book, THE PARADOXES OF NATIONALISM: THE FRENCH REVOLUTION AND ITS MEANING FOR CONTEMPORARY NATION BUILDING).

My sense is that Susan talks about the sociological foundations of genocide because she wants to convince skeptical readers that criminalizing incitement should not be out of the question, even though it involves criminalizing speech. Susan points out that U.S. law criminalizes speech that is “likely to lead to imminent lawless action” (495). However, she finds this test too narrow in the context of genocide, because “[e]ven a small risk of genocide is too much” (495). Instead, she proposes a six-prong test to “aid in identifying (498) the crime of incitement to genocide for the purposes of preventing and prosecuting it.

1. How can we manage different allocations of the values of speech vs. security at the national and international levels?

Susan indicates that her six-part test is intended to provide an interpretive aid, rather than a list of elements of the crime. In other words, her project is not, strictly speaking, a doctrinal one. However, because of the project’s doctrinal implications, it would be useful to engage more concretely the conflict Susan frames at the outset between the U.S. standard for incitement and the international criminal law test she proposes. Even if there is no customary international law against hate speech (492 n.33), is there—or would Susan like to see—a more robust customary international law prohibition of incitement to genocide? If so, does the four-part test applied by the ICTR in the Media case (489 n.17) accurately reflect this standard?

2. What is the appropriate relationship between criteria for prosecution and criteria for prevention?

Susan suggests that accurately identifying incitement presents important opportunities for prevention, because incitement is an inchoate crime (494 n.42). She highlights the U.S. government’s decision not to jam the RTLM signal and prevent the dissemination of genocidal messages in Rwanda (488 n.12), and indicates that her six-part test should inform the deliberations not only of courts, but also of those contemplating “genocide-prevention efforts” (489).

It strikes me as potentially problematic to conflate these two scenarios without more detailed analysis. If we are going to use the six-prong inquiry to identify triggering conditions for the ability—or even obligation—to breach state sovereignty in order to disrupt telecommunications, then we should talk concretely about the parameters of such an obligation, and how it could be operationalized. This is a compelling and important project, which Susan hints at but does not pursue here. If we are concerned with criminal prosecution, it seems to me important to discuss at greater length how Susan’s “reasonably possible consequences” test compares to other criminal law tests regarding probable consequences, so that domestic and international jurisprudence incorporating this test can be predictable, consistent, and legitimate.

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