Comment on Atrocity Speech Law by Gregory Gordon

[Roger S. Clark is the Board of Governors Professor of Law at Rutgers Law School.]

Several important themes are developed alongside one another in Gregory Gordon’s remarkable book on the activity for which he coins the term “atrocity speech law.”  They are captured largely in his sub-title “Foundation, Fragmentation and Fruition” and in his summary of the “fruition” points at pp. 16-24 of the work.  I cannot do justice to all his exhaustive scholarship and his insights in a short blog post,  so I shall comment on the general picture and then outline, idiosyncratically no doubt, a couple of the points that particularly struck me.

Gordon assays a concrete legal definition of his subject area in the text of a creative proposed “Convention on the Classification and Criminalization of Atrocity Speech Offenses” (pp. 378-81).  Article 1 of the treaty has the Parties confirming that “hate speech, when uttered for purposes of triggering or supporting atrocity crimes, should be accurately categorized in its different penal forms and criminalized and punished according to the actual form it takes.”  “Such speech,” it adds, shall be considered to give rise to what is known as ‘atrocity speech liability’”.  Article 2 states that “[f]or purposes of this Convention, ‘atrocity crimes’ means genocide, crimes against humanity, and war crimes, as defined respectively in Articles 6, 7, and 8 of the Rome Statute of the International Criminal Court.”  Obviously, I admire his boldness in trying his hand at treaty drafting, which is why I mention at the outset his global solution to the problems elucidated in the previous three hundred-odd pages.  I’ll return to the Convention later.

The “foundation” part of the argument expands on his understanding of the “historical record,” namely that “instances of mass atrocity have always been accompanied by communications campaigns designed to demonize the intended victims and inflame the passions of would-be perpetrators.”  (P. 5, and see his excellent typography of the various forms of demonization at pp. 284-91, where he relates them especially to the “direct” requirement in respect of public incitement to genocide.)

The first attempt to deal with such activities through the criminal law was at Nuremberg where Julius Streicher was charged, convicted and executed on the basis of the persecution leg of crimes against humanity.  The confusion about whether an inchoate incitement theory, which Gordon espouses, would be appropriate in such cases begins with Streicher, although the issue was not pressing there, as the evil deeds had occurred at the time of trial and could be attributed to him and persecution filled the bill.

It should be noted, though, that the Nuremberg prosecution also sought to use an inchoate conspiracy theory.  Had it been developed further, that might have been a viable way to deal with situations which are of concern to Gordon, where there is no necessary causal link between what the accused did and the atrocities actually committed.  But the Tribunal held that the inchoate conspiracy provision in the Charter applied only to crimes against peace (aggression).

The London drafters of Nuremberg had grappled in a desultory fashion with conspiracy, an important feature of the enterprise for Justice Jackson that was not well understood by the others drafters, even the British.  Sometimes, as I read his transcript of the proceedings, I wonder if Jackson himself really understood what he was doing.  In particular, he and the British were not always clear whether they were talking about the inchoate conspiracy doctrine that the British and American legal systems share, or the peculiarly American doctrine that a conspirator may become liable for the crimes committed by other conspirators in somewhat peripheral situations where they would not be held liable by virtue of basic complicity principles (the “Pinkerton” doctrine which remains a feature of federal law).  More on this later too.

Streicher’s persecution leg of crimes against humanity, which might not necessarily include violence, was essentially spun off to become the core of genocide, as defined in the Genocide Convention.  Genocide appears almost identically in the later Statutes of the ad hoc Tribunals for Former Yugoslavia and Rwanda, and of the ICC, although it still finds an overlapping place in definitions of crimes against humanity.

The Nuremberg Charter contains no suggestion that there should be responsibility for attempted crimes under international law; the Tribunal itself was not enthusiastic about conspiracies to commit war crimes and crimes against humanity. The Genocide Convention, however, picks up both attempt and conspiracy responsibility, along with direct and public incitement — three inchoate offenses. It included in its definition not only genocide (as a principal) and complicity in genocide, but also that trio of preparatory offenses. These inchoate offenses travelled, uniquely with reference to genocide, into the Statutes of the ad hoc Tribunals.

If this can be regarded simply as an example of the vagaries of the drafting process, the drafting of the Rome Statute is even more curious.  In Article 25 of the Statute, dealing with “individual criminal responsibility,” attempts (defined essentially in the Model Penal Code language of “a substantial step”) can be prosecuted for all Statute offenses (Article 25 (3) (f)).  This, as I see it, includes not only genocide, crimes against humanity and war crimes, but also the crime of aggression, whose inclusion within the effective jurisdiction of the Court is on the horizon.  Direct and public incitement of others to commit genocide is also included (Article 25 (3) (e)).

This type of criminality is, however, not extended to the other crimes within the Court’s jurisdiction.  I was involved as a representative of Samoa in the negotiations on Article 25.  As best I understood the argument, in a process that proceeded on the basis of consensus, it was that genocide was unique and the type of incitement involved did not need to be extended to the other offenses.

Gordon disagrees with this result and I am inclined to think that he has a point. Conspiracy was even more puzzling for the negotiators.  This time, no reference to inchoate conspiracy for genocide based on the Genocide Convention was carried forward into the Rome Statute.  My impression here was that many players, like their predecessors in London in 1945, had no clue about the difference between inchoate conspiracy and conspiracy as a form of complicity.  They thought they had solved the problem with Article 25 (3) (d) of the Statute, a kind of residual complicity provision which renders criminally responsible a person who:

“In any other way contributes to the commission or attempted commission of such a crime by a group or persons acting with a common purpose.  Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group … or (ii) Be made in the knowledge of the intention of the group to commit the crime.”

This is a mode of participation in a crime (or an attempt) when that crime or attempted crime actually occurs, not an inchoate offense for which there is responsibility regardless of what happens afterwards.  If it is a “conspiracy” theory, it is one closer to the Pinkerton doctrine (and its international counterpart Joint Criminal Enterprise) but one which, unlike some versions of those, requires a minimum mens rea of knowledge on the part of the “co-conspirator.”  (Inchoate) conspiracy to commit genocide, from the Genocide Convention, got lost in the shuffle.  Those who worked on defining the crime of aggression, in fulfillment of the expectations of Rome that it would be finalized later, saw no reason to carry forward Nuremberg’s conspiracy to commit aggression, given that it had disappeared in Rome in respect of genocide.  (They did think that Article 25 (3) (d) might apply to aggressors in some cases, as long as they were leaders; see Article 25 (3 bis).)

The “fragmentation” part of the book analyzes, in particular, the relative incoherence of the jurisprudence, especially that of the Rwanda Tribunal.  There are difficulties especially with the ways in which the Tribunals have dealt with the “public” and “direct” aspects of incitement to genocide, and with the definitions of persecution and of the complicity words “ordering” and “instigation.”  There is, moreover, the absence of the crime of incitement to commit war crimes.  Gordon argues for improved definitions and for creating the crime of incitement to commit war crimes.  I think he should probably argue for the sake of consistency for responsibility for inciting crimes against humanity also, but I could not find him doing so explicitly.  He has argued in a separate book chapter for a kind of incitement to commit aggression.  He does not appear to be a fan of conspiracy as an inchoate offense, in spite of its tenuous history in relation to aggression at Nuremberg or in the Genocide Convention.

Incidentally, Professor Gordon notes (p. 357) “Conspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity and war crimes” are defined as criminal in the United States Army Field Manual 27-10.  He also notes the complete absence of application or of expert commentary on this provision.  Note also that the Military Commissions Act of 2009 (echoing the earlier 2006 version) claims jurisdiction in Commissions for attempts, conspiracy and (inchoate) “solicitation” to commit the motley bunch of substantive offenses (not including aggression) outlined in the statute.  I assume that ‘solicitation” here is the same as “direct incitement” in the Field Manual.  The requirement of directness perhaps protects some speech, a legitimate concern for Gordon.  The conspiracy part of the MCA has been the subject of extensive litigation, not least in the Hamdan saga.  The legislative assertion that “[t]he provisions of this subchapter codify offenses that have traditionally been triable by military commission” has to be taken with a large dose of salt.

So, to the “fruition” part of the argument.  I think that his modest proposal is to fix Article 25 (3) of the Rome Statute, at least extending incitement (without the public requirement which the case-law suggests is unnecessary) to cover war crimes (p. 351) and presumably crimes against humanity.  The more radical proposal is the proposed treaty on Atrocity Speech Offenses, noted above, which would replace (or run parallel?) to the present less than coherent assemblage of offenses.  The basic idea is apparent from the definition that I quoted earlier.  Article 5 of the draft includes the gamut of different kinds of conduct involving hate offenses which the parties are required to criminalize: “Incitement,” “speech abetting” (encouragement during ongoing atrocities without proof of causation), “instigation” and “ordering” with freshened definitions in each case.

There is plenty to mull over here and examining the Convention in detail would take up a book of blogs, not a mere 1800 words.