Archive of posts for category
Conferences and Events

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.

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.

Technology, Speech, Hate, Virtuality … and the Path of the Law

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute at Washington and Lee University.]

Atrocity Speech Law is a hefty book. It is, as Professor Gordon himself describes it, a ‘tome’. Atrocity Speech Law is rigorous and ambitious: packed with information, breathtakingly detailed, brimming with integrity, and vivified by important themes of law reform. In contrast to the absurd invective it seeks to deter, Gregory’s arguments are measured and modulated, poised and principled.

Although Gregory has invested so much in this book, and the book contains so much, he also is wisely modest that much more remains to be said. So I want to say something about one thing Gregory has identified as something that remains to be said, and then I want to say something about something else that he hasn’t identified as such.

But, first, to the core argument: Gregory posits that atrocity speech law exists but is hampered by the fact it is fragmented. The fragmentation, I would hasten to add, is not deliberate or intentional. Like much of law, the law regulating atrocity speech emerged by virtue of bricolage. That said, and however charmingly organic, bricolage quickly brushes up against important limits: concerns over coherence, predictability, and consistency. In fact, simply by labeling the issue at hand as ‘atrocity speech’, Gregory already contributes structure and parsimony, in that the regulation of speech that encourages violence currently remains cobbled together from various specific crimes such as incitement to genocide, hate speech, ordering, instigation, and persecution as a crime against humanity. By advancing arguments of unification and codification (he proposes a draft convention on atrocity speech), Gregory situates himself within a venerable tradition of international law-making. Although I often find myself attracted to (a bit of) messiness, and believe the value of Cartesian organization in the world of law may be overrated and too hungrily stated, Gregory makes a very compelling case for his vision.

Gregory gestures ahead near the end of the book. He points to historical research, denial, sentencing, and empirical inquiry on the actual effects of hate speech as areas for further research. Among these, I think that sentencing is of particular salience. Gregory finds unexplainable variation among sentences issued for hate speech crimes at the international level.  I am not surprised. I have long questioned the rationalities of sentencing at the international criminal courts and tribunals and the operational coherence of the sentences that actually are issued. Although greater predictability has arisen over time, which is good to see, pockets of concern persist. Assembling together the various crimes that involve speech, which Gregory has done, and providing a heuristic of sentences for these crimes, which Gregory also has done, exposes these underdeveloped aspects of sentencing. Although retribution and deterrence are taken as the two major goal of international sentencing, as re-announced recently by the ICC in Bemba and Al Mahdi, how would these goals apply in the case of atrocity speech? Can persons convicted for speech crimes be rehabilitated? Are they in a position, unlike other criminals, to undo what they had done, to disclaim what they had claimed, to correct the record, to retract, to unwind? If so, how could these remedies form part of the punitive schematic?

Turning now to the something not spoken of: Atrocity Speech Law largely absents conversations about technology. This surprises me. The book has a bit of a last century vibe to it. Sure, some societies are more technologically embedded and uploaded than others, but we are all well beyond newspapers and radio broadcasts. Our world is less one of RTML and Kangura and megaphones and Nuremberg rallies than it is one of social media, anonymous (and instantaneous) information, and virality; of YouTube and the internet; of ‘fake news’ and doctored events; of Instagram and Facebook and  Twitter and Whatsapp and Iphones. Widespread and systematic access to the Web, so to speak, permits everyone to become a speaker (anonymous or otherwise) and to be heard. So hate speech metastasizes much faster than ever before, it can stain so many listeners so quickly, and can become pandemic. Anyone with an internet connection can start it.  State-run television, cable given over to the interests of an ideology, and the press each certainly and assuredly is important. But I would wish to hear from Gregory as to how his (re)construction of atrocity speech law would map onto these new virtual media which definitively change how and through whom and from where ‘information’ is obtained.  How does technology challenge (or not) the many legal elements of the crime?

Gregory closes his book with an appeal for both application of penal law and preventative measures. So, then, preventatively, how to ventilate the spaces of the Web in which ‘speakers’ vent their furor? Is social host liability, liability for providing space, an answer? If so, what further cascades might such liability present for freedom of expression? Any vexation? What opportunities for reparations? What can we learn from internet regulation domestically, for example, when virtuality is used to cyberbully or humiliate individuals?

Gregory’s book is a tour-de-force. We are all the better for it. We are lucky to have him, and his work, to guide us through these rapidly growing thickets.

Comment on Atrocity Speech Law by Gregory Gordon

by Roger S. Clark

[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.

A Set of International Crimes without Coherence or a Proper Name: The Origins of “Atrocity Speech Law”

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 have always felt that great scholarship is born of great frustration. And that’s what inspired me to write Atrocity Speech Law: Foundation, Fragmentation, Fruition (Oxford University Press 2017). Why was I so frustrated? The answer goes back to my salad days as a lawyer with the Office of the Prosecutor at the International Criminal Tribunal for Rwanda, when I was assigned to the “Media” team. We investigated, and eventually indicted, certain newspaper and radio executives/employees responsible for inflammatory rhetoric disseminated in the lead up to and execution of the Rwandan Genocide. But there were few legal precepts, and even less jurisprudence, available to guide us. What little there was emanated from Nuremberg, where rabid Jew-hating journalist Julius Streicher, Nazi Radio Division head Hans Fritzsche and Reich Press Chief Otto Dietrich had been prosecuted. So, from a legal perspective, we had to be resourceful as we constructed our ICTR media cases centering on charges of direct and public incitement to commit genocide and hate speech as the crime against humanity of persecution – only the latter having been charged against the just-mentioned Nazi propagandists (other possible speech-related charges available to us were instigation and ordering). But given that we were venturing onto what was largely legal terra nullius (especially with respect to incitement), we often had to grope in the doctrinal dark. So that was the first stage of frustration.

Still, from a law development perspective, I remained sanguine. The key “Media” defendants were ultimately convicted – Ferdinand Nahimana and Jean Bosco Barayagwiza (founders of the infamous Radio Télévision Libre des Milles Collines or RTLM, otherwise known as “Radio Machete”), RTLM announcer Georges Ruggiu, and extremist Hutu newspaper editor Hassan Ngeze. The judgments against them, along with that of Mayor Jean-Paul Akayesu for incitement to genocide (the first in history) – offered hope that a decent foundation had been laid for a law that could effectively govern the relationship between speech and atrocity. But that hope turned out to be misplaced.

Over time, for example, it became clear that there were problems with the formulation and application of the incitement crime, comprising the elements of “direct,” public,” “mens rea,” “incitement” and, possibly causation. Issues arose with respect to each of these. I will not deal with each of them here but will provide some brief examples for illustrative purposes. For instance, thanks in large part to the Akayesu judgment’s paying wishy-washy obeisance to both French- and English-language sources, treatment of the “direct” element was schizophrenically situated somewhere between Common Law and Civil Law conceptions. Unfortunately, the French word for “incitement” – inciter – was also the French word for “instigation” – one of whose elements is resultant violence. So that seemed to engender confusion with respect to causation. Incitement, as an inchoate crime, should not require causation. But Akayesu and its progeny were examining causation in the factual portions all the same and the Akayesu judges even went so far as to assert the need to prove “a possible causal link” between the relevant speech and subsequent violence in that case.

As for the “public” element, its inadequacies were exposed in the so-called “roadblock cases” at the ICTR. Even though inflammatory speech uttered at roadblocks was in a “public” place — because on public roads accessible to all citizens — the speech was held not to be “incitement” because “members of the public” were not present. But if enough persons were present at the roadblock, then “members of the public” could be considered in attendance and the speech could be considered “incitement.” This was a distinction without principle and did not seem to be justified from a policy perspective. Moreover, an advocate’s voice in closer proximity to a listener is arguably more compelling than one from a distance. In other words, private incitement can be just as lethal, if not more, than public.

There were problems with crimes against humanity(CAH)-persecution too. That crime consists of (1) knowingly uttering speech as part of a widespread or systematic attack against a civilian population; (2) resulting in a severe fundamental group-rights deprivation (motivated by group-status); and (3) considered as being of the same gravity level as the other CAH acts. Unfortunately, the ICTR and ICTY have adopted polar opposite positions regarding the issue of whether hate speech not calling for violence can serve as the actus reus for persecution as a crime against humanity. The ICTR concluded that such rhetoric blatantly deprives the target ethnic group of fundamental rights and thus could be the basis for charging persecution. But the ICTY, in the Kordić judgment, found that hate speech not directly calling for violence did not constitute persecution because it failed to rise to the same level of gravity as the other enumerated crimes against humanity acts (such as imprisonment or deportation, for example). And so doctrinal gridlock ensued.

Instigation, the prompting of another to commit an offense (resulting in commission of the offence) – with a connection between the prompting and the crime (i.e. a “contribution”) has also been plagued with problems. As we have seen, it has been consistently confused with incitement and this has exacerbated the muddled jurisprudence regarding causation in both bodies of law. Moreover, there is no consistent approach to the crime’s “contribution” requirement, leading to a series of disjointed pronouncements regarding the degree of contribution and, reading last year’s horrid Šešelj judgment, arguably importing a “but for” causation requirement into the jurisprudence. Ordering, essentially instigation in the context of a superior-subordinate relationship, has been deficient as it permits the superior to escape liability if the command is not carried out (clearly problematic when juxtaposed with incitement to genocide, where there is no superior-subordinate relationship between speaker and listener but the speech utterance itself – regardless of resultant violence — carries liability).

In addition to such individual offense problems, I was also beginning to realize these modalities did not function well together as an ensemble, thus creating significant liability loopholes. For example, in the law’s current state, liability for “incitement” — an inchoate crime — is limited to genocide. Crimes against humanity and war crimes are also horrific atrocity offenses. Why was there no incitement liability connected to those crimes? Similarly, speech uttered in support of contemporaneous mass violence — and with knowledge that the violence is occurring — is limited to the offense of persecution as a crime against humanity. Why was there no speech-specific liability for rhetoric uttered knowingly in support of ongoing acts of genocide or war crimes? The answer could not lie in generic accomplice liability, as it does not recognize the unique power of speech to provoke mass atrocity in the first place.

Upon deeper reflection, it occurred to me that this problem owed to the piecemeal development of the entire body of the law from its inception. On an ad hoc basis, according to individual exigencies at different times, this doctrinal assemblage had been cobbled together by taking a hodgepodge of legal concepts, such as inchoate or accomplice liability, and willy-nilly fastening them to different speech activities. Thus, it is only by historical chance that incitement, a form of inchoate liability, only applies to genocide and not to crimes against humanity or war crimes. The resulting gaps frustrate prevention efforts and help encourage repressive regimes to take advantage of the ambiguity and suppress legitimate speech.

So, in the full measure of time, the growing body of jurisprudence was clearly not allaying my initial sense of frustration. Perhaps, I began thinking, fellow academics and other experts were also noticing these problems and offering solutions. But a review of the literature also left me disappointed – it was as fragmented as the doctrine. Despite excellent individual pieces by talented scholars such as Susan Benesch, Carol Pauli, Wibke Timmermann, Diane Orentlicher and Richard Wilson, among others (myself included – guilty as charged!), there had been no comprehensive study of this body of law. Some articles and books had dealt with parts of it but no single volume had furnished a comprehensive analysis of the entire jurisprudential output and the relation of each of its parts to one another and to the whole (although Wibke’s monograph Incitement in International Law, published after I started writing my book, came closest). No one had yet bothered to step back, systematically consider what has been produced, and provide holistic, constructive analysis and suggestions for change.

And thus was the Atrocity Speech Law project born. After completing my research, I found the book logically divided into the three components of its subtitle. Part 1, “Foundation,” begins with a brief history of atrocity speech, focusing on the Armenian genocide, the Holocaust, and mass killing in the former Yugoslavia and Rwanda in the 1990s. It then looks at the modern treatment of hate speech in international human rights treaties (such as the International Covenant on Civil and Political Rights) and in domestic jurisdictions. This serves as a bridge to a history of atrocity speech law focusing on its origins at the Nuremberg trials. Flowing from this, the book examines the development of speech crimes as formulated in the Genocide Convention and the statutes of the ICTR, ICTY and ICC. It then analyzes the relevant decisions issued by these courts, including the seminal ICTR Akayesu, Ruggiu, and Media Case judgments as well as the ICTY’s Kordić decision. It concludes by considering the general framework and the elements of the crimes established by these decisions.

Part 2, “Fragmentation,” goes on to identify the discrepancies within that framework, its inconsistent applications and other problems the framework engenders, as discussed above. Finally, Part 3, “Fruition,” recommends how the law should be developed going forward to deal with these issues. It begins by proposing how to fix the various problems within each individual speech offense. Then it suggests a more comprehensive and elegant solution: a “Unified Liability Theory” that would replace the current patchwork of speech offenses surrounding atrocity — e.g., incitement only applying to genocide, speech-specific inchoate liability not applying to crimes against humanity or war crimes, and speech offenses related to war crimes being limited to instigation/ordering — and create four general categories of speech offenses: (1) “incitement” (an inchoate mode of liability applying to all three core crimes — genocide, crimes against humanity and war crimes — but eliminating the “public” element from the liability portion of the crime and attaching it to sentencing considerations — while removing “direct” from the title only, not the prima facie elements to help protect free speech); (2) “speech-abetting” (a type of accomplice liability for speech knowingly delivered simultaneously with commission of atrocities, and also applying to all three core crimes); (3) “instigation” (a form of commission liability applying to all speech causally related to subsequent atrocity and thus also linked to the three core crimes); and (4) ordering (criminalizing commands to commit atrocity within a superior-subordinate relationship and incorporating inchoate liability).

And all of these reforms can be operationalized through promulgation of a new treaty, “The Convention on the Classification and Criminalization of Atrocity Speech Offenses,” and/or through amendment of the Rome Statute to include Article 25bis — “Liability Related to Speech.” That new provision, whose equivalent could also be placed in domestic statutes as well as the constituent instruments of existing and/or new ad hoc international tribunals, would contain all four types of speech liability — incitement, speech abetting, instigation and ordering — connected to all three core international offenses — genocide, crimes against humanity and war crimes. The point is that speech’s unique and potent contribution to atrocity should be recognized and criminalized in its own right. It should not become lost in a set of scattered provisions, relegated as a functionally invisible adjunct to other criminal law concepts in the general “modes of responsibility” sections of statutes, charters and codes. And the set of principles it gives rise to should have a name commensurate with its elevated status. That name should capture the entire range of the doctrine and its intimate relationship with mass violence. And this book coins that name: “atrocity speech law.”

Symposium: Gregory Gordon’s “Atrocity Speech Law”

by Chris Borgen

Over the next three days we will have an online discussion concerning Gregory Gordon’s new book Atrocity Speech Law: Foundation, Fragmentation, Fruition (Oxford 2017).

We welcome Professor Gordon (The Chinese University of Hong Kong Faculty of Law), as well as Roger Clark (Rutgers Law), Mark Drumbl (Washington and Lee School of Law), and David Simon (Yale Dept. of Political Science), who will comment on themes from the book.

We look forward to the conversation!

Comparing U.S. Strategies in Constructing Cybernorms with China

by Duncan Hollis

I’ve got a new draft article up on SSRN (you can download it here) entitled China and the U.S. Strategic Construction of Cybernorms: the Process is the Product.  It was written for a really great inter-disciplinary workshop held at Stanford Law School earlier this Spring by the Hoover Institution’s National Security, Technology and Law Working Group (which is chaired by Ben Wittes and Jack Goldsmith). The article will be published shortly in Aegis, the Hoover Institution’s Paper Series with some cross-linking on Lawfare (Hoover already has one of the Workshop’s other papers posted – a great piece by by Adam Segal on Chinese Cyber Diplomacy).

In the meantime, here’s my abstract:

This paper explores the role norms—shared expectations about appropriate behavior within a given community—play in advancing U.S. interests in changing Chinese behavior in cyberspace. It focuses on two recent normative achievements: (1) the U.N. Group of Governmental Experts’ consensus that international law applies in cyberspace; and (2) the U.S.-China understanding that neither State would pursue cyber-espionage for commercial advantages. To date, both agreements have been studied largely in terms of their contents – on what they say.

In contrast, this paper undertakes a broader, process-based analysis of U.S. efforts to generate cybernorms. It compares and contrasts the two projects by examining (a) their respective normative ingredients (i.e., the type of desired behavior, the identity of the group subject to the norm, the source of the norm’s propriety, and the extent of any shared expectations); (b) where the norm promotion occurred (i.e., grafted onto an existing institution or deployed in a newly established process); and (c) the choice of mechanisms—incentives, persuasion, socialization—by which the United States sought to develop and evolve each norm. Doing so reveals a diverse range of choices that offers a new lens for analyzing and assessing how cybernorms may emerge (or change) in a global, dynamic and pluralistic environment. As such, this paper provides a framework for strategizing about the potential risks and rewards of pursuing different normative processes, whether in U.S. efforts to impact China’s behavior in cyberspace or vice-versa. States and scholars would thus do well to assess current and future efforts to construct cybernorms with China and other States by looking at not just one, but all the aspects of normative processes.

As always, comments and feedback are most welcome.

Events and Announcements: April 2, 2017

by Jessica Dorsey

Sponsored Announcement

  • The Academy on Human Rights and Humanitarian Law is pleased to share with you today the newly released brochure for the 2017 Program of Advanced Studies on Human Rights and Humanitarian Law. The Program will take place from May 30 to June 16, 2017 and offers 20 courses in English and Spanish taught by more than 40 world-renowned scholars in the field of human rights and humanitarian law. Professors include Special Rapporteurs from the United Nations, Commissioners, Judges and other members of the Inter-American Commission and Court of Human Rights, Judges from International Tribunals like the ICC, ICJ and ICTY and professors from all over the world. The program provides a unique opportunity to interact directly with these high profile officials who are rarely available in such a personal setting. We also welcome over 150 participants from more than 25 countries around the world, all with varying levels and areas of professional experience in human rights, providing an excellent networking opportunity. The application can be found here: https://goo.gl/WcRh0J, and the deadline to apply is May 1. We would be happy to speak to anyone who may be interested in attending the Program at our new Tenley Campus by email at hracademy [at] wcl [dot] american [dot] edu or by phone at 202-274-4295.

Announcements

  • Duke Law seeks to fill a Clinical Fellow/Supervising Attorney position in its International Human Rights Clinic beginning in the Summer of 2017. The Clinical Fellow/Supervising Attorney will work closely with the Director of the International Human Rights Clinic. She or he will primarily help supervise student fieldwork in Clinic projects and participate in the planning and teaching of the Clinic advocacy seminar. The Clinical Fellow/Supervising Attorney will also work closely with the Director and other faculty to expand Duke Law’s experiential learning opportunities in international law, including through student placements in competitive summer and semester fellowships and externships in human rights and related fields. The individual appointed to the position will receive mentorship in teaching, scholarship, and human rights lawyering and will have an opportunity to work with the faculty affiliated with the Center for International and Comparative Law. Applicants should have a minimum of two to five years of relevant experience. In addition to a record of, or demonstrated potential for, clinical teaching, advocacy, and intellectual engagement, the ideal candidate will have experience: as practicing lawyers or human rights advocates, developing practice- oriented courses, supervising students in fellowships or externships, working collaboratively with faculty, and other evidence of in-depth knowledge of and practical engagement in international human rights law and mechanisms. The initial term of the appointment is expected to be two years. Salary and benefits will be commensurate with experience and competitive with similar fellowship positions at other top U.S. law schools. Applicants should send a statement of interest and CV to Ali Prince at ali [dot] prince [at] law [dot] duke [dot] edu by April 16, 2017. For more information, see here.

Will International Law Matter to the Trump Administration?

by Julian Ku

There are lots of panels and conferences being held around the U.S. (and maybe outside the U.S.) on the new Trump Administration’s policies and their impact on international law. I would like to recommend our readers view some or all of the video from this half-day conference recently hosted in Washington D.C. by the Federalist Society and the American Branch of the International Law Association.  Entitled “International Law in the Trump Era: Expectations, Hopes, and Fears,” the conference has lots of interesting scholars and former U.S. government officials participating.  All of the panels look great, but it is hard to avoid highlighting the panel discussion below with friend of blog John Bellinger and Georgetown lawprof Rosa Brooks tackling the question everyone is asking:

Event: Australia, Refugees, and International Criminal Law (February 13)

by Kevin Jon Heller

I want to call readers’ attention to what should be — despite my participation — a fantastic event at City Law School the week after next. Here is the info:

City, University of London: The Refugee Crisis and International Criminal Law: Are Australian Agents and Corporate Actors Committing Crimes Against Humanity?

City Law School invites you to a panel discussion of international criminal law aspects of the refugee crisis, with a focus on the Australian detention facilities. The discussion will follow the announcement and launch of a new major initiative by the Stanford International Human Rights Clinic and the Global Legal Action Network (GLAN).

Refugees and asylum seekers are currently under attack in many developed countries, including in European states, the US, and Australia. International criminal law has developed around the need for international institutions to intervene on behalf of the most vulnerable populations, when states are unwilling or unable to do so. Can international criminal prosecution help counter the current encroachment upon refugee rights? Currently, the most flagrant examples of such encroachment are Australian practices, which have also served as a model for migration restrictionists around the world. Our focus will be on the treatment of refugees in Nauru and Manus Island by Australian officials and agents, including corporate actors. At issue, however, are not only legal questions. As important are contemporary political conditions, in which the international criminal court is under sustained critique for a seeming bias against African leaders; and in which Western governments and populist movements are proposing new policies that violate refugee rights. Does the concept of Crimes against Humanity accurately capture the conditions of detention and practices of mass deportations? And, if there are international crimes committed, are these grave enough for the International Criminal Court to investigate? Can and should International Criminal Law shift its focus from instances of spectacular or radical evil to the normalised and ‘banal’ violence waged by Western states as a consequence of the structures of global inequality?

Speakers: Ms Diala Shamas, Supervising Attorney and Lecturer, Stanford Law School International Human Rights and Conflict Resolution Clinic; Dr Cathryn Costello, Andrew W. Mellon Associate Professor in International Human Rights and Refugee Law, fellow of St Antony’s College, University of Oxford; Professor Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London; Dr Ioannis KalpouzosLecturer in Law, City Law School, City, University of London; Legal Action Committee, Global Legal Action Network; Dr Itamar Mann, Senior Lecturer in Law, University of Haifa; Legal Action Committee, Global Legal Action Network; Ms Anna Shea, Researcher and Legal Advisor, Refugee and Migrant Rights, Amnesty International.

The event takes place on Monday 13 February 2017 at 18:00 at City, University of London, College Building, St John Street, EC1V 4PB – Room AG21. The event will be followed by a wine reception. Attendance is free. You may sign up here.

Hope to see some OJ readers there!

Events and Announcements: December 18, 2016

by Jessica Dorsey

Here’s an extra-long edition of our Events and Announcements for the holidays. Thanks to all our readership for following us on OJ!

Calls for Papers

  • The blog IntLawGrrls: voices on international law, policy, practice, will celebrate its first decade with “IntLawGrrls! 10th Birthday Conference” on Friday, March 3, 2017. The daylong event will be held at the Dean Rusk International Law Center of the University of Georgia School of Law, which is hosting as part of its Georgia Women in Law Lead initiative. Organizers Diane Marie Amann, Beth Van Schaack, Jaya Ramji-Nogales, and Kathleen A. Doty welcome paper proposals from academics, students, policymakers, and advocates, in English, French, or Spanish, on all topics in international, comparative, foreign, and transnational law and policy. In addition to paper workshops, there will be at least one plenary panel, on “strategies to promote women’s participation in shaping international law and policy amid the global emergence of antiglobalism.” The deadline for submissions will be January 1, 2017, though papers will be accepted on a rolling basis. Thanks to the generosity of the Planethood Foundation, a fund will help defray travel expenses for a number of students or very-early-career persons whose papers are accepted. For more information, see the call for papers/conference webpage and organizers’ posts, or e-mail doty [at] uga [dot] edu.
  • Young scholars and PhD candidates interested in empirical methods in international law are invited to submit expressions of interest for this workshop on the use of “authorities” in international dispute settlement. The workshop will not involve the publication of papers, although works-in-progress will be discussed by the participants. By bringing together young and established scholars using empirical methods, this workshop aspires to provide inspiration and practical guidance. The workshop, funded by the British Academy, is organised by Dr Michael Waibel and will take place on 20 March 2017, at the Lauterpacht Centre for International Law at the University of Cambridge. Expressions of interest shall be sent to Damien Charlotin (dc655 [at] cam [dot] ac [dot] uk) by 10 January 2017 with a description of your research interests and how they relate to the theme of the workshop, plus a CV with a list of publications. The organizer will let applicants know by 20 January 2017 about the outcome of their application.
  • The Minerva Center for the Study of the Rule of Law under Extreme Conditions at the University of Haifa (Faculty of Law and the Department of Geography and Environmental Studies), invites proposals for research activities, aimed at analyzing the various aspects of pre, during and post-emergency resilience. For more details, see the website here.
  • The Board of Editors of Trade, Law and Development [TL&D] is pleased to invite original, unpublished manuscripts for publication in the Summer ‘17 Special Issue of the Journal on Recent Regionalism (Vol. 9, No. 1). The manuscripts may be in the form of Articles, Notes, Comments, and Book Reviews. TL&D aims to generate and sustain a democratic debate on emerging issues in international economic law, with a special focus on the developing world. Towards these ends, we have published works by noted scholars such as Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Gabrielle Marceau, Simon Lester, Prof. Bryan Mercurio, Prof. E.U. Petersmann and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law and the 10th best trade journal worldwide by Washington and Lee University, School of Law for five consecutive years (2011-15) [The Washington & Lee Rankings are considered to be the most comprehensive in this regard]. For more information, please go through the submission guidelines available here or write to us at editors@tradelawdevelopment.com.
  • We invite submissions to a one-day conference on ‘Non-universal franchise? Eligibility and access to voting rights in transnational contexts’ to be held at the European University Institute (Florence) on 3rd April 2017. Convenors: Rainer Bauböck (EUI), Derek Hutcheson (University of Malmö) and Ruvi Ziegler (University of Reading). Papers should connect to the central topic of the conference, with a focus on eligibility to electoral rights, access to the ballot, or both. We invite comparative and theoretical papers from political science, normative political theory, and comparative legal perspectives. Deadline for submission of abstracts Tuesday, 31 January 2017 (by email to derek [dot] hutcheson [at] mah [dot] se). For further details, please see the call for papers.
  • Senior and junior academics and practitioners (including PhD candidates and post-doctoral researchers) are invited to participate in the call for papers of the Colloquium on International Investment Law & the Law of Armed Conflict’. Authors are invited to submit by March 15, 2017,an abstract (of an original paper) which is neither published nor accepted for publication when the Colloquium takes place. Papers will be selected on the basis of submitted abstracts, subject to double-blind peer review. Only one abstract per author will be considered. Abstracts must not exceed 800 words, must be anonymous and not identify the name or affiliation of the author(s) in the abstract, the title, or the name of the document, and must be submitted to the following email addresses: agourg [at] law [dot] uoa [dot] grcathy_titi [at] hotmail [dot] com; and katiafachgomez [at] gmail [dot] com. In addition to the abstract, each submission should contain, as a separate file, a short (one page) author’s CV, including the author’s name and affiliation and contact details and a list of relevant publications. Authors of selected abstracts for the Colloquium will be notified by April 15, 2017. Following this, they must submit a draft paper (6,000-8,000 words) by August 15, 2017. The draft papers will be distributed to the other participants in advance to facilitate an in-depth discussion during the Colloquium  a ‘no paper – no podium’ policy applies. After the Colloquium, submission of final papers by authors is due by November 30, 2017. Selected final papers will be published by Springer, subject to peer review, in the Special Issue of the European Yearbook of International Economic Law (EYIEL) on ‘International Investment Law & the Law of Armed Conflict’.

  • The international criminal justice stream at the SLSA Annual Conference contains four panel sessions and invites submissions on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would be particularly welcomed and papers based on “works in progress” will be considered so long as the work is sufficiently developed. Both individual papers and panel submissions (of three related papers) can be submitted for consideration. Postgraduate students are also encouraged to submit abstracts. Selected papers from the conference will be published in a forthcoming edition of The Hague Justice Journal. For an informal discussion please email the convenor, Anna Marie Brennan at Anna [dot] Marie [dot] Brennan [at] liverpool [dot] ac [dot] uk. Abstracts must be no longer than 300 words and must include your title, name and institutional affiliation and your email address for correspondence.
  • Polish Yearbook of International Law (PYIL) is currently seeking articles for its next volume (XXXVI), which will be published in June 2017. Authors are invited to submit complete unpublished papers in areas connected with public and private international law, including European law. Although it is not a formal condition for acceptance, we are specifically interested in articles that address issues in international and European law relating to Central and Eastern Europe. Authors from the region are also strongly encouraged to submit their works.Submissions should not exceed 12,000 words (including footnotes) but in exceptional cases we may also accept longer works. We assess manuscripts on a rolling basis and will consider requests for expedited review in case of a pending acceptance for publication from another journal. All details about submission procedure and required formatting are available at the PYIL’s webpage. Please send manuscripts to pyil(at)inp.pan.pl. The deadline for submissions is 31 January 2017.
  • Transnational organized crime is a major threat to international security. This has been recognized by the United Nations Report of the High-level Panel on Threats, Challenges and Change. One country’s success in limiting illicit production and flows often results in the displacement of the problem to another state, thereby signalling the need for a coordinated response. The past few decades have seen a growing number of multilateral conventions addressing questions of transnational crime. In response, the emerging field of transnational criminal law is developing with the growing recognition of the need for further research and informed dialogue about important legal questions arising in this context. On May 4-5, 2017, the Transnational Law and Justice Network at the University of Windsor, Faculty of Law, invites academics, policy makers, NGOs, and individuals working on the ground to participate in a multidisciplinary regional dialogue about the most pressing transnational criminal law issues facing the Americas today. Topics may include: the suppression treaty regime generally; legal responses to specific transnational crimes such as drug trafficking, human trafficking, migrant smuggling, money laundering, corruption, firearms trafficking, environmental crimes, and other transnational organized crime; institutions and accountability for transnational crime; and mutual legal assistance, cooperation and capacity building. More information can be found here.
  • The 13th Annual Conference of the European Society of International Law will take place in Naples, Italy, on 7-9 September 2017. The conference will be hosted by the University of Naples Federico II, the oldest public university in the world. The theme of the conference is ”Global Public Goods, Global Commons and Fundamental Values: The Responses of International Law”. The Call for Papers is now open. Deadline for submission of abstracts: 31 January 2017Further information is available on ESIL website.

Announcements

If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Events and Announcements: November 6, 2016

by Jessica Dorsey

Calls for Papers

  • To mark 15 years since the coming into force of the Statute of the International Criminal Court (ICC) on 1 July 2002, the Journal of International Criminal Justice is pleased to announce a forthcoming symposium on ‘The International Criminal Court’s Policies and Strategies’ to be published in July 2017. The Court and its various organs have continually issued a number of documents explaining the Court’s policies on numerous distinct issues as well as its strategies for the future. The Journal’s Editorial Committee believes that the time has come to take a closer and systematic look at these documents, looking at the choices made thus far, the level of transparency and consistency, as well as suggesting avenues to strengthen the overall effectiveness and credibility of ICC investigative and prosecutorial strategies. The Journal calls for submission of abstracts not exceeding 500 words on the questions described above, or related areas of interest, no later than 15 November 2016. After the abstracts are reviewed, in early December, the Editorial Committee will invite a number of contributors to submit full papers of no more than 8000 words (including an abstract and footnotes) by 28 February 2017. For more information about the call, please visit the website here or contact the Executive Editor at jicj [at] geneva-academy [dot] ch.
  • The university of Michigan Law School will be hosting its Third Annual Young Scholars’ Conference on March 31 – April 1, 2017. This year, The Michigan Journal of International Law intends to publish selected papers from the conference. More information about the call for papers and the conference can be found here.
  • In advance of the 6th Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law (PEPA/SIEL) 2017, taking place in Tilburg, the Netherlands, 20-21 April 2017, and with SIEL’s Postgraduate and Early Professionals/Academics Network (PEPA/SIEL) being, among other things, interested in fostering collaboration and mentoring opportunities for emerging academics and professionals in International Economic Law (IEL). PEPA/SIEL fulfils these goals through various activities such as organising conferences at which emerging IEL academics and professionals can present and discuss their research in a supportive and welcoming environment, have issued a call for papers. More information can be found here.

Events

  • The Centre for Business and Commercial Laws of the National Law Institute University, Bhopal in collaboration with Trilegal, is organizing the second edition of NLIU-Trilegal Summit on Mergers and Acquisitions on 25th & 26th February, 2017. Participating authors are expected to submit either an article or an essay on Mergers and Acquisitions within the contours of the sub-themes. Authors are required to register themselves provisionally by sending an e-mail to trilegal [dot] nliusummit [at] gmail [dot] com outlining their intention of contributing to the summit. Provisional Registration is open up to 30 November, 2016. All papers, along with an abstract (not more than 300 words), must be submitted on or before 15 December, 2016 (11.59 pm). Further details can be found in the Brochure and Submission Guidelines. The brochure can be accessed here and submission guidelines can be accessed here.

Announcements

  • Fietta associates Ashique Rahman and Laura Rees-Evans, along with other public international law practitioners from within private practice and government, have established the Young Public International Law Group (YPILG).  The YPILG aspires to connect PIL practitioners to one another to facilitate knowledge-sharing in the PIL field.  The group will promote the next generation of PIL professionals.  Fietta, Debevoise & Plimpton, Clifford Chance, Matrix Chambers, Essex Court Chambers and the Foreign & Commonwealth Office are the initial co-sponsors of the YPILG.  A drinks reception to launch the YPILG will take place on 29 November 2016 at the Foreign & Commonwealth Office.  Professor Vaughan Lowe will be the keynote speaker. Further information about YPILG, including how to register for the launch event, can be found on the YPILG website 
  • The WZB Berlin Social Science Center’s research area International Politics and Law, unit Global Governance (Director: Prof. Dr. Michael Zürn) is seeking to appoint two research fellows to be employed fulltime (39 hours/week) for up to five years, commencing on 16th January 2017 or as soon as possible thereafter. Main tasks involve the theory-based research of transnational and international institutions, their social and political prerequisites, and the repercussions on national processes. The successful candidates are to work within the framework of the research programme of the Global Governance unit. Please see the unit’s website for more information. Applications (motivation letter, CV, list of publications, references, if applicable) should be sent to the following e-mail address in the form of a single PDF file by 21.11.2016: Barçın Uluışık: barcin [dot] uluisik [at] wzb [dot] eu.
  • The British Institute of International and Comparative Law (BIICL) is looking to appoint a strong candidate to the Arthur Watts Senior Research Fellowship in Public International Law (.pdf) to build on BIICL’s pre-eminence in this area. Public international law helps to address fundamental challenges facing individuals, businesses and governments, including international trade, investment, business, peace and security, armed conflict, terrorism and counter-terrorism, human rights, taxation, communications and the environment. The Fellowship and its activities are funded through the Arthur Watts Appeal,in memory of the late Sir Arthur Watts QC, one of the leading international lawyers of his generation. The Fellowship’s purpose is to ensure that the practical application of public international law remains securely at the heart of BIICL’s work. The Appeal is an active fundraising campaign led by Sir Frank Berman, KCMG, QC and Chair of BIICL’s Board of Trustees. Further details on the Appeal are available here.

If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.