Comments on Atrocity Speech Law by Gregory Gordon

by David Simon

[David J. Simon is the Director of the Genocide Studies Program at Yale University.]

It is something of a cliché to call a newly published book an “achievement.”  I can think of no better word, however, to describe Gregory Gordon’s Atrocity Speech Law.  This is the rare book on legal doctrine that is engaging and digestible to lawyers, legal academics, and non-lawyers alike.  Professor Gordon describes horrifying episodes of atrocity speech in recent history, meticulously develops and dissects the ensuing case law that unfolded, and cogently argues for a more comprehensive vision of future standards by which atrocity speech should be proscribed, prosecuted, and adjudicated upon.  These quite different component parts are so well executed that it is almost easy to forget by the magisterial end that the whole project begins with the coining of the term “Atrocity Speech Law.”  Gordon has set an extremely high standard for future books on the subject.

Gordon begins the task of elaborating what this field encompasses by surveying a disparate/scattered set of jurisprudential concerns surrounding speech related to the commission of atrocity crimes.  Finding coherence lacking, he proceeds to articulate both a jurisprudential fix and a set of real life motivations for doing so.  Not being a legal academic myself, I will mostly refrain from commenting upon the former.  Suffice it to say that Gordon’s reverse engineering of atrocity speech case law exposes and illustrates an unholy trinity of haste, political expediency, and under-competent judging that all too frequently characterizes the formation (and execution) of international humanitarian and criminal law.

The fix he proposes to the doctrinal mess he describes is not merely a matter of bringing order to a chaotic corner of the legal world.  For Gordon,

…folding all speech-related delicts into a single provision provides for a better organized exposition of the law and calls greater attention to speech as a potent factor in provoking and fueling atrocity.  As a practical matter, rather than having a fragmented collection of rules scattered in different parts of a statute, the proposed consolidated provision puts the proper emphasis on speech crimes and facilitates simultaneous consideration of the offenses so that prosecutors can make more efficient and effective charging decisions (385).

However, as my own interests and expertise, such as it is, lie in the field of atrocity prevention, I focus on the implications of Gordon’s work there.  In a narrow reading, there is benefit – indirect but important – to doctrinal coherence:  too much of international prevention efforts are ad hoc, uncoordinated, and therefore come off as collectively amateurish.  Like its international post-conflict justice component, the prevention regime itself, therefore, seems easily circumventable, characterizable as the project of one-world dreamers with little bite except in occasional instances of post hoc convenience.  One might reasonably expect a legal code to be the exception, but as Gordon shows in his survey of the field’s fragmentation, this is far from the case.  The call of coherence is also a call for the prevention project to be taken seriously, and for it to have the tools necessary for that to be so.

Displaying the righteous zeal of a former prosecutor (and I mean that as an unmitigated compliment), Gordon offers a more direct payoff projected from this project.  He notes that the operationalization of his doctrinal fixes

would promote greater consistency in prosecuting atrocity speech in both municipal and transnational fora around the world.  And it would more effectively put would-be verbal hatemongers on notice that speech in atrocity contexts will not be the collateral postscript to filling mass graves.  Rather, it will serve as humanity’s alarm bell, auguring and triggering punishment before it is too late (395).

The logic underpinning this bold claim is straightforward:  several efforts to establish constructs by which to understand genocide have, as Gordon cites, emphasized the role that speech plays in the process of effecting genocide and other atrocities. For example, Gregory Stanton’s “Ten Stages” theory gives significant weight to the role of speech acts in fomenting atrocities.  Nearly half of Stanton’s stages may substantially involve speech: Classification (Step 1), Symbolization (2), Dehumanization (4), Polarization (6), and – controversially, as Gordon acknowledges, Denial (10) (see here).

If conceptualizations like these are accurate, to prevent genocide requires disrupting the willful acts core to each step of the process.  And when those acts include speech acts, a framework for prevention necessarily must include a strategy for identifying speech that has the potential to cause atrocity – and doing something about it. A comprehensive and consistent framework for defining atrocity speech, as Gordon provides, enables the first task.

The second, however, remains a challenge, particularly as one moves away from relying on the knowledge of the possibility of ex post adjudication and punishment having a deterrent effect, and towards ex ante identification and intercession.

At the basis of the difficulty of ex ante intercession is Gordon’s completely accurate conclusion that the harm of atrocity speech is not necessarily a product of the injury (or violence) it causes, but in its very potential to cause violence.  Thus, Gordon rightly argues that to respond appropriately (i.e., preventively) to incitement, the doctrine must recognize its inchoate nature. To invoke a phrase from another field, the anti-atrocity speech regime must feature (proactive) police patrols as well as (reactive) fire alarms.  However, convincing courts to play their proactive role is a tough sell on the criminal side.  International courts can barely maintain their capacity to render ex post judgments, much less take on ex ante cases.  Both international and national courts have been loath to separate guilt from the causation of harm, even when statutes dictate otherwise.  Furthermore, it is hard to imagine atrocity speech, which for better or for worse always has a tentacle in the realm of politics, being given a hearing which itself would not be accused of being political.  In most countries, a state, through its municipal courts, would be unlikely to look into the alleged speech transgressions of (fellow) state actors out of concern for its own legitimacy.  Prosecutions of non-state actors would be more likely to occur, but inevitably smack of overreach, an attempt of to use the power of the state to quash dissent.

The guidance Gordon gives, while delineating with remarkable clarity the nature of speech that should elicit a response anterior to atrocity actions, leaves unanswered questions  as to who ought to identify the transgressions and who ought to initiate the prosecutions.  As with much of the genocide prevention effort, political expedience concerns will likely override implementation even where municipal jurisdictions have adopted it.  Skepticism of internationalism combined with realist conceptions of foreign policy will mute its application at the international level. The outsize role the United States plays in establishing global norms is especially challenging for the implementation of a prevention agenda around atrocity speech:  not only is skepticism of global governance high, but there is extreme reluctance on the part of the United States to countenance ex ante speech limitations of any sort, a handicap to the adoption of anti-atrocity speech norms.

I suspect – and by that I mean ‘fear’ – that the arc of the Responsibility to Protect (R2P) norm may represent the most likely trajectory.  R2P emerged from an idealistic set of principles, gained life as a body of UN-elaborated language, and withered to something that is cited in international policy when not significantly inconvenient to major powers.  The unwillingness to place principle above politics (and, barring that, fiscal constraints) relegates R2P to the status of secondary concern.

And yet the story of R2P offers a glimmer of hope, as well.  The advent of R2P has introduced language of responsibility into the proceedings of various junctures of global governance.  When global actors use or endorse the language disingenuously, that disingenuousness comes with a price in terms of reputation and credibility (albeit one that countries, over and over again, have been willing to pay.)  Where R2P tends to succeed is below the Security Council level, in the rhetoric of middle powers, in the actions of young regional organizations like the African Union’s Peace and Security Council, or the Office of Security and Co-operation in Europe.  Politics and other concerns can still supersede the sway of the norm at this level, but with fewer veto players holding trump cards at higher levels, the doctrine stands a greater chance of gaining a foothold.

I would argue that the task for the atrocity speech crimes project is to build an implementation infrastructure that does not rely solely on judges and criminal complaints.  The architecture of atrocity speech policy must acknowledge legal realism, which recognizes the enduring political barriers to implementation of a regime based solely on ideals. In doing so, the goal would not be to pare back, or make less inclusive, the anti-atrocity speech framework.  Rather, the task is to populate the regime with institutions other than politically disinterested municipal courts or under-empowered international ones.

The task is to develop an administrative architecture that could preside over an essentially civil law application of Gordon’s framework.  The architecture might involve a network of non-governmental organizations paired with independent international bodies, perhaps set up at regional levels.  A core mandate of these bodies would be to hear such cases of alleged atrocity speech, and deliver injunctions accordingly.  While the bodies would possess no policy power, the failure of the enjoined to adhere to the injunctions then would become legal matter in its own right, triggering referral to either a higher juridical body (like the ICC) or a political one (like the Security Council, or its equivalents on regional government organizations).

There exist blueprints in the world of global governance for such a mid-level institution. The European Court of Human Rights has injunctive powers (albeit among others). Alternatively, treaty-derived institutions like the International Criminal Court or the International Atomic Energy Agency interface with the United Nations but were separately established, and thereby exercise a measure of independence.  Thus Article 6 of Gordon’s proposed treaty could be expanded to specify a mid-level international organization that could be charged with identifying or responding to atrocity speech complaints.  Certainly, this would not be without controversy, and the institution(s) would be vulnerable to capture.  Yet compromisable new institutions remain preferable to vesting all anti-atrocity speech prerogatives with national and international organs that have, to this point, created a muddled body of law, and whose politicization is already manifest.

http://opiniojuris.org/2017/07/13/comments-on-atrocity-speech-law-by-gregory-gordon/

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