Author Archive for
Gregory Gordon

Defining Incitement to Genocide: A Response to Susan Benesch

by Gregory Gordon

[Gregory Gordon is Professor of Law, University of North Dakota School of Law.]

I would like to begin by thanking Opinio Juris for inviting us to have this important discussion here about the crime of direct and public incitement to commit genocide. I would also like to congratulate Susan Benesch on her excellent article regarding this verbal harbinger and prerequisite of mass atrocity. Professor Benesch provides a much needed exploration of the more complex facets of incitement that will afford jurists, advocates, and would-be offenders greater clarity in assessing the process by which permissible speech corrodes into forbidden exhortation.

But I cannot share in Professor Benesch’s conclusion that the crime of incitement remains “alarmingly” ill-defined. As I point out in my articles A War of Media, Words, Newspapers and Radio Stations: The ICTR Media Trial Verdict and a New Chapter in the International Law of Hate Speech, 45 VA. J. INT’L L. 139, 150 (2004) and From Incitement to Indictment? Prosecuting Iran’s President for Advocating Israel’s Destruction and Piecing Together Incitement Law’s Emerging Analytical Framework, 98 J. CRIM L. & CRIMINOLOGY (forthcoming June 2008), jurisprudence from the Rwandan incitement prosecutions has gleaned four criteria through which speech content regarding race or ethnicity can be analyzed as either legitimate expression or criminal advocacy: (1) purpose; (2) text; (3) context; and (4) the relationship between speaker and subject.

With respect to the “purpose” criterion, this jurisprudence has provided some examples of legitimate objectives: historical research, dissemination of news and information, and public accountability of government authorities. At the opposite end of the spectrum, explicit calls for violence would evince a clearly illegitimate purpose. The International Criminal Tribunal for Rwanda has given examples of discourse falling between these two extremes, including permissible speech focusing on ethnic animosity but geared toward raising ethnic consciousness, not provoking ethnic violence.

The “text” criterion, which entails a rigorous parsing of the words themselves, helps further reveal the purpose of the speech and provides an important piece of the contextual puzzle. The “context” criterion, arguably the linchpin of the entire analysis, mandates an examination of the circumstances external to and surrounding the text so that its true significance can be divined. This includes situating the words and their utterance within the relevant linguistic, social, economic and historical framework. In applying this criterion, we must, among other things, ask whether the speaker embraced the views espoused or distanced himself from them. We also have to consider whether the speaker is using code words or indirect means of inciting the audience in a way that will be grasped by listeners at that time and place.

Finally, the case law instructs the finder of fact to examine the relationship between the speaker and the subject. According to this part of the test, the analysis should be more speech-protective when the speaker is part of a minority criticizing the government or the country’s majority. In all due respect, the application of this four-part test certainly calls into question Professor Benesch’s conclusion that “a mere racist could be convicted of a crime tantamount to genocide, and speech may be unduly and dangerously restricted.”

Still, Professor Benesch refers to a poorly reasoned intermediate court decision in the Léon Mugesera case, subsequently overturned by the Canadian Supreme Court, to illustrate how “alarmingly” ill-defined the crime of incitement remains. In addition to being reversed by the Supreme Court, that decision was at odds with two lower court decisions finding Mugesera’s speech constituted incitement. The decision’s interpretation of Mugesera’s speech as being about “elections, love and courage” is instantly discredited by the language of the portions of the speech at issue. For example:

You know there are ‘Inyenzis’ [cockroaches] in the country who have taken the opportunity of sending their children to the front, to go and help the ‘Inkotanyis’ [Tutsi warriors, fierce fighters] …. Why do they not arrest these parents who have sent away their children and why do they not exterminate them? Why do they not arrest the people taking them away and why do they not exterminate all of them? … [We] must do something ourselves to exterminate this rabble…. I asked if he had not heard of the story of the Falashas, who returned home to Israel from Ethiopia? He replied that he knew nothing about it! [I] am telling you that your home is in Ethiopia, that we will send you by the Nyabarongo so you can get there quickly’…. Another important point is that we must all rise, we must rise as one man … if anyone touches one of ours, he must find nowhere to go.

Of course, the Canadian Supreme Court engaged in the kind of rigorous exegetical analysis necessary for evaluation of incitement allegations and included a contextual examination of the term “Inyenzi” as well the murderous metaphoric significance of transporting Tutsis to an ethnic-stereotype “homeland” via a non-navigable river traditionally used to dispose of corpses after ethnic massacres (even though it did not explicitly and systematically apply the four-part test). Thus, when seen in the larger context, the intermediate court’s decision represents a sui generis aberration in a string of decisions that had no difficulty finding Mugesera’s words constituted incitement. Such an anomaly is certainly not evidence of an “alarming” definitional deficit. (Professor Benesch comments that Mugesera’s speech preceded the Rwandan genocide by too long — seventeen months — but she ignores the essential point, made in the Canadian decisions finding incitement, that the speech itself was preceded and followed by large-scale ethnic violence – that was the context which permitted a finding of incitement.)

Nevertheless, as a solution to this perceived problem, Professor Benesch proposes a brand new test — that a speech be considered incitement to genocide if there is a “reasonable possibility” that genocide can occur when the speech was given. Although Professor Benesch acknowledges that causation has been rejected as a requirement for establishing incitement, I am afraid her proposed test creates enough of a conceptual fissure to let causation slide in through the back door. I submit that a retrospective actuarial assessment of the prospects for genocide is at odds with the fundamentally inchoate nature of the incitement crime. That an inchoate crime is committed prior to, and independently of, the object crime is axiomatic. The main purpose of punishing inchoate crimes is to allow the judicial system to intervene before an actor completes the object crime. The crime carries such a high risk for society that it must be punished without reference to subsequent acts, if any, of genocide. The crime is complete when the words are spoken in the proper context. And while it is true that incitement has never been prosecuted without a subsequent genocide occurring, adopting a test which would tend to perpetuate that pattern would needlessly cabin incitement law, which I believe should be used for its intended function — pre-atrocity deterrence, as opposed to mere post-atrocity punishment.

That said, the likelihood of subsequent violence given the circumstances surrounding a speech and the mental perspective of its listeners indirectly factor into the contextual analysis already called for in the law’s current iteration. Accordingly, the prongs of Professor Benesch’s six-part test do a wonderful job of fleshing out the existing four-part test. And so I view her analysis as an invaluable addition to incitement law.

In fact, I think it important to acknowledge that the analytic framework for incitement law is still developing. As I point out in my articles, the ICTR Media Case does not even explicitly set out a four-prong test – I argue that the test should be further refined to include four prongs, instead of what is formulated as two (purpose and context – although, as I indicate, the ICTR does actually engage in the analysis of text and relationship between speaker and subject without explicitly acknowledging it). And as I recognize above, the Mugesera Supreme Court decision was not sufficiently disciplined in its analysis to apply the test in a systematic, step-by-step way (although it does ultimately cover the essential components of the test). I also lament in my articles that the existing case law does not go far enough in identifying different types of incitement (such as “accusation in a mirror,” among others) and so I believe Professor Benesch’s contribution is timely and vital. I merely propose that her six-prong test be integrated into incitement law’s existing framework, which has been growing organically. In short, there is no sense in throwing the proverbial baby out with the bath water by adopting a new “reasonable possibility” test, which would likely lock incitement into its traditional role of retrospective punishment device and retard its recent evolution toward prospective deterrence mechanism. We must vigilantly protect free speech whenever and however we can but never at the cost of laying the groundwork for another genocide.

Symposium: Gordon Reply to Drumbl

by Gregory Gordon

[Gregory Gordon is Assistant Professor of Law at the University of North Dakota Law School and a conbributor to the Opinio Juris On-Line Symposium]

I think Professor Mark Drumbl’s perceptive comments highlight some of the serious tensions underlying the creation of an inclusive, internally coherent international due process that dispenses justice efficiently while upholding the human rights principles on which it is premised. By no means do I think the United States criminal procedure model, or the adversarial model in general, is without flaws (other systems tend to protect speedy trial rights more effectively, for example). But as observed by Professors Cassese and Zappalà, the adversarial system is designed to be more rights protective than the inquisitorial model. It also tends to be more rights protective than the traditional forms of indigenous justice, such as gacaca, referred to by Professor Drumbl.

But Professor Drumbl questions whether a system offering the highest levels of due process, as arguably embodied in the adversarial system, “should be the normative baseline in terms of its suitability for redressing atrocity.” He fears it might not, given its alien character and its imposition of “externalized justice” on victim societies. While I appreciate Professor Drumbl’s concerns for cultural authenticity and local integration, I would point out that mass victim societies are often trapped in cycles of violence that have culminated in atrocity and will likely perpetuate themselves absent external intervention. Part of that intervention, I submit, involves instituting systems of justice that respect the dignity of all human beings and heightened levels of due process for atrocity defendants are an integral part of that. In any event, such standards are not necessarily “alien.” Most of them are embodied in the International Covenant on Civil and Political Rights, to which most of the nations of the world are parties.

While it is true that the ICCPR does not include all of the due process rights to which I allude in my article, I advocate for a process of “hybridization.” The right to a jury trial, which incorporates notions of local peer review that Professor Drumbl seems to prefer, is a perfect example. Appropriately modified, it could be suitable (or indeed preferable) for international criminal adjudication. In this sense, I could not agree more with Professor Drumbl’s calls for incorporation of indigenous and traditional systems of justice into the international model.

I would caution, however, that to the extent the wells of traditional, indigenous justice have been poisoned by a culture of impunity, we should always keep our focus on the due process features mandated by bedrock principles of human rights. In my article, I point out that experts have generally classified justice systems into three separate categories: domestic legal justice, international criminal justice, and “hybrid” criminal justice, a term used to describe newly emerging forms of mixed national-international criminal adjudication as found in, for example, the Sierra Leone and proposed Cambodia tribunals. As specific domestic structures are grafted onto “hybrid” criminal procedure, my article does not include analysis of them within its scope. For purposes of my article, the term “international criminal procedure” is meant to encompass the rules developed by truly international courts (i.e., in addition to having multinational traits, not being moored to one specific domestic tradition), including the International Military Tribunal at Nuremberg, the ad hoc tribunals for the Former Yugoslavia and Rwanda, and the International Criminal Court.

While Professor Drumbl’s suggestions are clearly essential in considering the appropriate scope and nature of “hybrid” criminal justice, they may not always be suitable for “international” criminal justice. The latter is geared more toward the prosecution of “big fish” and is often better suited for adjudication outside the immediate zone of the crime scene. In that regard, the removal of Charles Taylor’s trial to the Hague is illustrative. The alternate sanctioning mechanisms suggested by Professor Drumbl – such as restitution, community service, re-integrative shaming, and reparations – may be appropriate for the legions of foot soldiers that will return to post-conflict society, but I submit they will not do for the Adolph Hitlers and the Théoneste Bagosoras. For such architects of genocide, I believe we should reject diluted “modalities of accountability that transcend the criminal trial” and eschew any proposals that dispense with “the correctional preference for sequestered incarceration.” And with respect to such criminal masterminds, in war-torn countries such as post-Nazi Germany or post-Interahamwe Rwanda, I submit that there can be no peace without justice.

By the same token, “local bottom-up justice approaches,” even for the foot soldiers, could lead to the Orwellian excesses of the Military Commissions Act of 2006 (MCA), which Professor Drumbl rightly condemns as inconsistent with the system of due process that governs penal adjudication in the United States. The MCA, which does away with such fundamental protections as habeas corpus, has created a no-man’s land of adjudication that adheres neither to the criminal nor to the traditional military paradigm of justice. We should be careful not to condemn atrocity adjudication in post-conflict societies to the same kind of twilight zone. In that sense, meaningful and robust due process is essential.

That said, we must, as Professor Drumbl persuasively argues, find ways to incorporate the best due process features of the different and varying indigenous systems into the international model. His wise suggestions will surely be part of molding the world’s disparate systems into an effective, inclusive, and lasting international criminal procedure.

Symposium Paper 2: Toward an International Criminal Procedure: Due Process Aspirations and Limitations

by Gregory Gordon


The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial appeal. Existing literature has pointed out these deficits but has failed to offer a systematic or comprehensive explanation for them. While such literature is helpful in identifying the problem, it has failed to provide a conceptual framework necessary for formulating solutions. This article constructs such a framework and uses it to provide a starting point for expanding international due process protections. It contends that three separate phenomena contribute to the restriction of international due process growth: (1) fragmentation of enforcement; (2) integration of conflicting legal systems; and (3) gravity of the crimes involved. It also analyzes the interplay among these three restricting phenomena and argues that any future growth of due process will hinge on efforts to achieve greater degrees of structural globalization, procedural hybridization, and transnational public awareness.

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