Reply by Gregory S. Gordon: On the General Part, the New Media and the Responsibility to Protect

by Gregory Gordon

[Gregory Gordon is Associate Professor of Law, Associate Dean for Development and External Affairs and Director of the Research Postgraduates Programme at The Chinese University of Hong Kong Faculty of Law.  He was formerly a prosecutor with the International Criminal Tribunal for Rwanda and the U.S. Department of Justice, Office of Special Investigations.]

I am grateful to Opinio Juris, especially organizers Chris Borgen and Jessica Dorsey, for providing this amazing platform to have a discussion about my new book Atrocity Speech Law: Foundation, Fragmentation, Fruition. And I would like to thank Professors Roger Clark, Mark Drumbl and David Simon for their astute and thought-provoking observations. Each took a different perspective regarding the book so I will respond to each of them ad seriatim.

Roger Clark is one of the great architects of international criminal law (ICL) and his contribution here masterfully situates my central arguments within the larger framework of ICL’s general part. Much is made in my book of incitement’s circumscribed application to the core offenses. But incitement is not ICL’s only marginalized inchoate modality – conspiracy has gotten the same treatment, as Roger indicates in his post. Animus toward that modality, however, arguably comes from different quarters. As Roger suggests, since Justice Jackson negotiated the contours of what would become the Nuremberg Charter, Americans have met with resistance when trying to weave conspiracy, a common count in American charging instruments, into ICL’s doctrinal warp and weft. And that’s not just in relation to the Pinkerton-type conspiracy to which Roger alludes (commonly associated with the controversial third category of joint criminal enterprise or “JCE III”– i.e., assigning criminal liability for offenses that were the “natural and foreseeable consequence” of implementing a common design).

I have very vivid memories of indictment-review meetings at the International Criminal Tribunal for Rwanda (ICTR), where lawyers from Civil Law jurisdictions would gnash their teeth and stoutly object to proposed garden-variety conspiracy counts. This could be the subject of another Symposium but I am still perplexed by this animosity; agreements to engage in group criminality – especially in the mass atrocity context – should be nipped in the bud and that is the object of inchoate conspiracy. And thus, to clear up one of Roger’s points, I am a fan of inchoate conspiracy! Of course, like any penal regulation, it can be abused. But when administered properly it can be a remarkably effective enforcement tool. And there is no doubt that my American-honed criminal law perspective colors my views on this topic!

So it is somewhat ironic that ill feeling toward that other inchoate crime, incitement, is primarily of American origin — owing to a rabid free speech ethos flowing from libertarian impulses. And it is here that I part company with many of my compatriots. As I point out in my book, incitement was nearly left out of the Genocide Convention due to American opposition out of concerns for liberty of expression. In fact, as Roger hints at in his post, it was the American position that there was no need to criminalize incitement separately, as it was already covered by conspiracy. I do not share that view. Provoking others to commit genocide is different from agreeing with them to do so. Conspiracy can be effected through non-verbal means. But incitement is always a verbal delict.

And that’s one of the key points in my book. It is true that we can technically find more general penal provisions to cover oral/written criminality in reference to mass atrocity. We could, for example, charge conspiracy rather than incitement or complicity rather than speech abetting (my proposed new modality). But that would be a mistake, I submit. We must recognize the critical, and unique, role played by verbal provocation in the atrocity context. And the operationalization of my proposed “Unified Liability Theory” does just that. While preserving incitement’s pride of place in reference to genocide, it would untether it from this traditional mooring and link it to the other core crimes. Just to be clear, in relation to Roger’s concern, that necessarily means adding incitement to crimes against humanity (CAH). And, more granularly, it should also entail incitement to the individual enumerated CAH acts. Thus, we should be thinking along the lines of incitement to CAH-extermination, for example.

And this is not such a radical idea. Roger references the little-noticed provision of US Army Field Manual 27-10, cited in my book, which criminalizes incitement to commit genocide, war crimes and crimes against humanity. And lest we forget, this was the approach taken by the International Law Commission in both the 1954 and 1996 versions of its Draft Code of Offences against the Peace and Security of Mankind. That is why I find baffling the ILC’s exclusion of incitement in the current version of its draft articles for a Convention on Crimes against Humanity.

Like all his work, Mark Drumbl’s analysis here is as brilliant lexically as it is legally! I can think of few other scholars whose work I peruse as much for the art of the prose as for the depth of the ideas. Perhaps it is appropriate that he comments on my book’s length. As it happens, during my darkest days of drafting drudgery, I would turn to the writing in works such as Atrocity, Punishment, and International Law to get inspired. And sure enough, after a few choice Drumblian paragraphs, I was back to my manuscript and the words would start to flow!

But let me state that I don’t believe my manuscript’s heft is for want of proper editing or any other indulgence. The criminal law governing the relationship between speech and atrocity had become such a tangled mess, that a proper genealogy, i.e., a big dig below several strata of botched norm-crafting, was necessary. Mark generously (I think) describes this law-formation process as “bricolage” in its English-language academic sense (i.e., something constructed or created from a diverse range of available things, with no teleological orientation).

But there may be a bit of irony in his use of this word. Per its ordinary Gallic meaning, bricolage refers to home-improvement “do it yourself” projects. And, in light of atrocity speech law’s herky-jerky doctrinal accretion, this is revelatory. For every stage of legislation – the Nuremberg Charter, the Genocide Convention, the ad hoc tribunal statutes, the Rome Statute – one discerns a “do it yourself” mentality (in a solipsistic sense) regarding the laws crafted to deal with discrete situations or problems. There appears to be little thought about what came before or what might follow — the bigger picture simply did not factor in. And deeper etymological analysis yields even more irony. When used pejoratively, bricolage in French means “patch-up job” or “shoddy workmanship.” And that perfectly describes the current atrocity speech law framework (and, to be fair, Mark certainly recognizes “concerns over coherence, predictability, and consistency.”)

Still, Mark intimates this process might have some value given the law’s natural, organic growth. I appreciate his point. But how much does organic growth matter if the ground soil is toxic to begin with? And regardless of soil quality, I highly doubt one could say the growth has been organic in any salutary, Aristotelean sense. Rather, the law has sprouted up pell-mell, like a dense tangle of weeds. And disentangling that mess, as well as explaining how properly to reconstitute it, takes patient parsing and ultimately results in a large Kindle data file. It was high time, I felt, to move past the myopic fragments of scholarship that had failed to offer holistic remedies.

Moreover, as Mark points out, that was not my only task. I also wished to suggest a to do list for future scholarship in this area. And, in this regard, I appreciate Mark’s emphasis on the key issue of sentencing. It simply would not do to adjust the liability misalignments while ignoring the punishment ones. As noted in my book, penalties to date have seemed as random as the contours of the substantive offense architecture that gave rise to them. Mark has generated amazing scholarship in this area and if he could turn his attention to this part of the atrocity speech law mess, we might get the insights needed to fix what is a highly undertheorized part of ICL.

Regarding atrocity and the new media, Mark has homed in on another critical aspect of future work in this area. I can understand his point about how “last century” the focus of my book seems to be. But it’s important to understand the context here. Atrocity Speech Law is mostly about the jurisprudence emanating from the Rwanda/Yugoslavia ad hoc tribunals and Nuremberg. When, to the chorus of RTLM rants, the Land of a Thousand Hills was being drenched in Tutsi blood, newspapers and radios were still the dominant media. When the Balkans convulsed in an orgy of post-Cold War ethnic cleansing, the likes of Slobodan Milošević and Radovan Karadžić were taking to the airwaves, not Twitter or Instagram. And so the jurisprudence to date reflects that.

Still, there are points in my monograph where the new media factor in. For instance, regarding incitement to genocide, I counsel considering media type as an evaluative factor to determine whether the “incitement” element of the offense has been satisfied. A more static medium, such as print, would compel a weaker inference of incitement. Social media, such as Twitter, would call for a polar-opposite inference. And in-between would be radio, a transmission vehicle less viral than social media but far more inherently incendiary than newspapers. Similarly, in respect of persecution, contextual evaluation of the speech in reference to a widespread or systematic attack against a civilian population demands consideration of the medium. Use of Instagram raises fewer freedom of expression concerns than, say, distribution of a pamphlet.

That said, Mark is on to something big. The issues raised by the use of new media must be grappled with more fully in the literature. When the next wave of state-sponsored mass violence leads to a new spate of inquests, questions of guilt in relation to internet service providers and social media platforms will no doubt vex future courts. We need to get out ahead of these issues and understand how to resolve them now. If we do, perhaps justice can be meted out far more efficiently and effectively than it was through this now-concluding ad hoc tribunal cycle. And, who knows, maybe good scholarship can contribute toward blunting atrocity rhetoric such that future trials will not even be necessary.

And that is a good segue to David Simon’s outstanding contribution. He focuses on how atrocity speech law coherence can help promote deterrence. But fixing the substantive law, he submits, will not be enough sans meaningful implementation. Given the outsize influence of the US, and the Security Council P5 generally, he questions whether the courts are the ideal enforcement fora in the first instance. But he brilliantly posits an alternative — “a network of non-governmental organizations paired with independent international bodies, perhaps set up at regional levels . . . that could be charged with identifying or responding to atrocity speech complaints.” And if not successful at that level, matters could be referred to higher bodies, such as upper-level regional organizations or perhaps even the ICC.

I was really excited when I read David’s post because, in certain important respects, it aligns well with another project I’m now working on concerning the philosophical foundations of international criminal law. In my new piece, tentatively titled Transnational Governmentality Networking: A Neo-Foucauldian Account of International Criminal Law, I rely on Michel Foucault’s later-stage theory of “governmentality” to help theorize the origins of international criminal law (ICL). Governmentality can roughly be defined as a non-disciplinary form of power arising from an amalgamation of institutions, procedures, analyses, and tactics that enable governance. I contend that ICL grew organically (there’s that word again!) from low-level, often informal, transnational networks enabled through the intercession of nongovernmental and international organizations. These networks ultimately facilitated the series of procedures, analyses and tactics that have reached critical mass in the formation of ICL.

Per this account, we can see David’s proposal as essentially suggesting a return to ICL roots (a bit of “reverse engineering” on his part as well!). But here the context is hate speech with a view toward atrocity prevention (via the emerging Responsibility to Protect norm). Obviously, on a personal level, I could not be more pleased to see two key branches of my scholarship brought together for such a meaningful purpose. And to have it coming from one of our finest genocide scholars is an incredible honor. Clearly, we need more of this sort of outside-the-box thinking if we ever realistically hope to redeem that “never again” pledge.

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