Vile Crime or Inalienable Right: Defining Incitement to Genocide
Many thanks to Opinio Juris for the invitation to blog, to the Virginia Journal of International Law for publishing my article “Vile Crime or Inalienable Right: Defining Incitement to Genocide,” and to Mark Drumbl, Chimène Keitner, and Gregory Gordon for commenting.
The article argues that incitement to genocide demands keen attention because it is a precursor to genocide, and may be a prerequisite for it. Public speech is often the means by which ‘conflict entrepreneurs’ – to use Mark’s thought-provoking term – ‘exacerbate discriminatory divisions which they then commandeer.’ (Atrocity, Punishment and International Law, p. 25).
However the crime remains alarmingly ill-defined. Courts have begun to decide cases on incitement to genocide during the last decade, beginning with the ICTR’s conviction of Jean-Paul Akayesu in September 1998, but have failed to explain adequately what incitement to genocide is, or how to identify it. The confusion is so great that a Canadian federal appeals court found that a November 1992 speech by the Rwandan Hutu activist Léon Mugesera showed him to be “a fervent supporter of democracy” who spoke of “elections, courage, and love” – and then the Canadian Supreme Court concluded that the same speech constituted incitement to genocide.
The Genocide Convention, which simply describes incitement to genocide as “direct and public,” does very little to limit the crime and, especially, to distinguish it from hate speech. Without a reliable distinction, a mere racist could be convicted of a crime tantamount to genocide, and speech may be unduly and dangerously restricted. Another knotty problem that courts have so far side-stepped is the temporal one. Since it takes time to persuade a group of people to condone and/or participate in genocide, incitement to genocide must not be limited to statements made on the immediate brink of genocide, or once it has already begun. But Mugesera’s speech was given seventeen months before the Rwanda genocide started, and there must be some lapse of time that would be too long, even though courts have found that there is no causation requirement for incitement to genocide. To solve this problem, I propose that a speech be considered incitement to genocide if there is a reasonable possibility that genocide can occur when the speech was given – irrespective of whether genocide actually takes place later. Note that the “reasonable possibility” standard is not inconsistent with criminal law, since it is not to be used as a standard of proof, but rather as an aid in defining or recognizing a crime.
To evaluate when there is (or was) a reasonable possibility that a speech will lead to genocide, I propose a six-part test. The first inquiry is whether the speech was understood by its audience, at the time it was made, as a call to commit genocide. (It is not enough to examine the plain meaning of the speech, since coded language is often a feature of incitement to genocide.) The second inquiry is whether the speaker had some form of influence over the audience. This emerges from my observation that anyone can commit hate speech, but incitement to genocide requires some form of influence over the audience. Political or state authority is not necessary and may in fact be weaker than the influence of someone like Simon Bikindi, the Rwandan pop music idol who is now a defendant, charged with incitement to genocide, at the ICTR.
A third inquiry is whether the speaker used what I call hallmarks of incitement to genocide – techniques that prepare the audience psychologically for genocide. One such technique is to announce that the intended victims are plotting to massacre the audience: the Jews will annihilate you Germans if you don’t kill them first, the Tutsi are coming to wipe out you Hutu. This makes genocide seem necessary, like homicide in self-defense. The other three ‘prongs’ narrow incitement to genocide by describing a social context in which conflict entrepreneurs have already taken other damaging steps: disseminating hate speech, quashing dissent so that the poisonous speech cannot be neutralized by the marketplace of ideas, and promoting violence against the intended victims. If all six prongs of the test are satisfied, it is reasonably possible that the speech will lead to genocide.