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International Criminal Law

UK-Saudi Arabia Arms Trade before the High Court: Questions following the Judgment

by Riccardo Labianco

[Riccardo Labianco is a PhD candidate at SOAS, University of London. His research focuses on state-to-state military assistance in times of conflict.]

On 10th July 2017, the High Court of Justice (HCJ) delivered its decision regarding the choice of the Secretary of State for International Trade not to halt the transfers of arms between the UK and Saudi Arabia (SA). The Campaign Against Arms Trade (CAAT), the claimant, requested judicial review of that choice, in light of the violations of international humanitarian law (IHL) committed by SA in the conflict in Yemen which likely occurred through UK-manufactured arms and weapons. Eventually, the judges accepted the government’s arguments and dismissed the request for judicial review. This decision was based on the fact that the UK government was the only actor able to assess the absence of a clear risk of IHL violations that could be committed with the transferred arms, due to its inside knowledge of the Saudi administration and its engagement with it. As shown below, the absence of a clear risk of IHL violations must be assessed before authorising any arms export.

Two aspects of the judgment are analysed here. First, the HCJ’s interpretation of the “Consolidated Criteria for Arms Export”, a piece of EU legislation incorporated in the UK legal system. Second, the choice to consider the UK’s “privileged position” within the Saudi administration as an essential element for the lawfulness of the arms transfers.

Symposium: Aeyal Gross’s “The Writing on the Wall”

by Kevin Jon Heller

Over the next three days we will be featuring an online discussion of my SOAS colleague and TAU law professor Aeyal Gross‘s new book for Cambridge University Press, The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017). The book develops ideas that Aeyal discussed on Opinio Juris — in a symposium on the functional approach to occupation — more than five years ago. So it’s fitting that we discuss his book on the blog now!

We are delighted to welcome a number of commenters, including Eliav Lieblich (TAU), Valentina Azarova (Koç) (who also contributed to the earlier symposium), Diana Buttu (IMEU), and Eugene Kontorovich (Northwestern). Aeyal will respond to the comments at the end of the symposium.

We look forward to the conversation!

Workshop CfP: Contingency in the Course of International Law

by Kevin Jon Heller

I am delighted to release the call for papers for a workshop I am organising with Ingo Venzke, my fantastic colleague at the Amsterdam Center for International Law. The workshop is entitled “Contingency in the Course of International Law: How International Law Could Have Been” and will feature an opening address by Fleur Johns (UNSW) and a closing address by Sam Moyn (Yale). The workshop will be held over two half days and one full day from June 14-16 2018. Here is our description of the concept:

The workshop will ask a question that is deceptive in its simplicity: How might international law have been otherwise? The overarching aim will be to expose the contingencies of international law’s development by inquiring into international law’s past. Such inquiries may be of systematic purport – asking, for example, how a different conception of the sources of international law could have emerged. Or they may focus on specific areas of the law, asking questions like whether the idea of state crimes could have taken hold or whether the NIEO could have achieved greater success. International law’s past is almost certainly ripe with possibilities that we have forgotten. The workshop will seek to reveal and remember them.

The workshop will focus on trying to tell compelling stories about international law’s contingency. To be sure, those attempts may fail and claims to contingency may well turn out to be false. Either way, though, we will question the present state of international law by challenging its pretense to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: ‘If there is a sense of reality, there must also be a sense for possibility’.

While the operation of the law is bound to gloss over any contingency in its course, we wish to draw out those contingencies to learn what could (not) have been. Some contributions will focus on the operation of international law itself, exploring the differential developments that could have taken place concerning seminal judicial decisions (eg, what if France had won the Lotus case?), key treaties (eg, what if states had failed to conclude the Second Additional Protocol in 1977?), or important institutions (eg, what if the International Clearing Union had been established in 1949?). Another set of inquiries will question the development of international law in light of more general historical events that might not have happened or might have happened differently, such as the outbreak of World War I, the processes of decolonization, or the terrorist attacks of 9/11. And yet other angles are welcome.

In the course of concrete inquiries into international law’s past, there are numerous opportunities for theoretical reflection about the nature of contingency itself, ranging from philosophies of legal history to questions about the narrator’s perspective. How should actor- and structure-centered accounts of the past be combined in probing the contingency of past events? How should we cope with possible tensions between pursuing interests in the present while avoiding undue anachronisms? And how can we contextualize legal developments without reducing law to its context only? Not the least, the question of how it could have been provides a renewed take on perennial questions of international law’s relationship with power, culture, and justice.

The workshop is open to everyone from PhD students to senior scholars — from law and from outside it — and the deadline for abstracts is December 1. You can download the full Call for Papers here. If you have any questions, please don’t hesitate to email me.

Saudi Arabia Threatens to Shoot Down a Qatari Airways Plane

by Kevin Jon Heller

Saudi-owned TV news network Al Arabiya aired a video simulation yesterday that shows a Saudi Arabian fighter shooting an air-to-air missile at a Qatari Airways plane. Here is the video:

That’s bad enough — but what is truly horrifying is the accompany voiceover, which intones the following:

International law permits states to shoot down any aircraft that violates a state’s airspace, classing it as a legitimate target, especially if flying over a military area.

No, it doesn’t. This is wrong on so many levels. To begin with, shooting down a Qatari Airways plane would categorically violate the Chicago Convention on International Civil Aviation, which Saudi Arabia ratified more than 50 years ago. Art. 3bis, which has been in force since 1998, provides as follows:

a) The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.

The second sentence recognises that Saudi Arabia would have every right under the UN Charter to defend it against armed attack — if, for example, the Qatar military decided to use a Qatar Airways plane for offensive military purposes. But although a civilian Qatar Airways plane would no doubt violate the principle of non-intervention if it intentionally entered Saudi airspace, thus giving rise to Qatari state responsibility (because Qatar owns Qatar airways), the mere fact of intentional entry would not remotely qualify as an armed attack — much less one that would justify the use of lethal force in self-defense.

The conclusion is no different under the jus in bello. A Qatar Airways plane would not become a legitimate target by flying over a Saudi “military area” — much less simply by entering Saudi airspace. Indeed, neither act would even be a use of force sufficient to create an international armed conflict between Qatar and Saudi Arabia. So IHL would not even apply.

We need to be clear about what the video represents. Quite simply, Saudi Arabia is threatening to engage in state terrorism — the use of violence to spread panic among Qatari civilians in order to persuade the Qatari government to supposedly stop supporting terrorist groups. (Something the Saudis know more than a little about.)

Saudi Arabia is a fundamentally lawless state. I’d like to think this horrific video could prove to be its Charlottesville moment, finally convincing the US and the UK that the Saudi government has no intention of complying with international law. But I’m not going to hold my breath. If routinely massacring civilians in Yemen isn’t enough, what’s casually threatening to blow up a civilian Qatari plane?

And So It Begins… Social Media Evidence In An ICC Arrest Warrant

by Emma Irving

[Emma Irving is an Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies of Leiden University]

The ICC’s most recent arrest warrant, issued on the 15th August 2017, should have us all talking for one important reason: it is the first ICC arrest warrant to be based entirely on evidence collected from social media. This was a move that was bound to come, and it aligns the ICC with the realities of many of today’s conflicts.

The ICC arrest warrant in question was issued against Mahmoud Mustafa Busayf Al-Werfalli, in the context of the Libya situation. Mr. Al-Werfalli, an alleged commander within the Al-Saiqa Brigade, is accused of having committed or ordered 33 murders in Benghazi or surrounding areas in June 2016 and July 2017. The crimes are alleged to have taken place during the Al-Saiqa Brigade’s participation in Operation Dignity, an operation which began in May 2014 as a coalition effort to fight terrorist groups in Benghazi.

The charge of murder as a war crime under Article 8(2)(c)(i) of the Rome Statute is based on seven separate incidents captured in seven separate videos. The Pre-Trial Chamber decision describes the events in these videos, some of which show Mr. Al-Werfalli shooting individuals himself, and some of which show him ordering others to commit executions:

Mr Al-Werfalli, wearing camouflage trousers and a black t-shirt with the logo of the Al-Saiqa Brigade, and carrying a weapon, is seen in a video footage shooting with his left hand three male figures in the head (§12)

Mr Al-Werfalli is seen speaking into the camera and then raising his left hand in the air and sweeping it down towards the ground in a manner that suggests that he is ordering the two men to proceed with the execution. The men shoot the persons kneeling, who fall on the ground. (§16)

The first of the seven videos is stated to have been posted to Facebook, while the other six are simply described as having been posted to social media. It is not clear whether the videos were posted by the Al-Saiqa Brigade itself or by a third party. At least some of the material appears to have been posted by the group itself, as early in the decision the Pre-Trial Chamber notes that the evidence supporting the application for the arrest warrant comes from ‘social media posts by the Media Centre of the Al-Saiqa Brigade’ (§3).

That the ICC has turned to social media evidence (also referred to as open-source evidence) is significant. In many of today’s conflicts (more…)

This Is Why People Think the ICC Is Unfairly Targeting Africa

by Kevin Jon Heller

Snapshot of two days in the life of the ICC.

On Tuesday, the ICC issued a new arrest warrant in the Libya situation — for Mahmoud al-Werfalli, a commander in the so-called Libyan National Army (LNA), which defected from the Libyan army during the revolution and is currently vying for power with the UN-backed Government of National Accord (GNA). The arrest warrant represents a new phase in the ICC’s completely unsuccessful investigation in Libya, as it is the first to focus on events that happened after the revolution. There is no reason to believe, however, that the warrant for al-Werfalli will be any more successful than the ones for Gaddafi and al-Senussi: the LNA has already made clear they will not surrender him to the ICC, and the GNA has zero prospect at present of capturing him.

On Wednesday, Rodrigo Duterte, the President of the Philippines, instructed his police to shoot human-rights activists who are “obstructing justice” by investigating his war against (alleged) drug dealers. That war has involved at least 7,000 extrajudicial killings in the past 13 months and has featured Duterte openly admitting not only that he has ordered the extrajudicial kilings, but that he has personally committed themHuman-rights groups and even a Philippine senator have called for the ICC to open an investigation into the situation.

There seems to be little question that al-Werfalli is guilty of ordering and participating in more than two dozen summary executions of captured soldiers — remarkably, there is video to that effect. But al-Werfalli is one military commander among hundreds responsible for horrific crimes in Libya. Duterte, by contrast, is the President of one of the only states in Southeast Asia that has ratified the Rome Statute. Even if he never ended up in the ICC’s dock, a formal investigation of the situation that he has almost single-handedly created in the Philippines would do more to deter the commission of international crimes than 500 arrest warrants for thugs like al-Werfalli. Yet despite issuing a strong statement making clear that the Court has jurisdiction over the situation and could prosecute individuals responsible for international crimes, there is no indication that the OTP has seriously contemplated opening a formal investigation in the Philippines.

The ICC fiddles in Benghazi while Manila burns. And yet the ICC claims not to understand why so many people think it’s obsessed with Africa.

Why the Security Council Should Not be Involved Regarding Al-Bashir’s Immunity

by Alexandre Skander Galand

[Alexandre Skander Galand is a Newton Postdoctoral Researcher at the Center for Global Public Law, Koç University; Ph.D. in Law (EUI).]

In a post published in September 2015, I asked whether the International Criminal Court (ICC) was in need of support to clarify the status of Heads of States’ immunities. My post followed the ICC Pre-Trial Chamber II (PTC II) request for submissions from the Republic of South Africa (RSA) with regards to the stay in its territory of the Head of State of Sudan, Omar Al-Bashir, on June 14-17, 2015.

Following UN Security Council (UNSC) Resolution 1593 (2005), referring the situation in Darfur to the ICC, two warrants of arrest have been issued against Al-Bashir for war crimes, crimes against humanity, and genocide. Sudan is not a State party to the Rome Statute, and many States have hosted Al-Bashir on the premise that he is protected by his immunity as the Head of a State not party to the Rome Statute. On 6 July 2017, after 2 years of proceedings, PTC II found that RSA failed to abide by its obligation under the Rome Statute to arrest and surrender the most wanted ICC fugitive. Nevertheless, the PTC also opined that a referral of the matter to the Assembly of States (ASP) and/or the UNSC, as provided in article 87(7) Rome Statute, was needless.

In this post I argue that two reasons lie behind PTC II’s decision to not refer the RSA. First, it is an acknowledgment that the ICC case law on the immunity of non-party Heads of States is cloudy. And, second, the PTC II foresaw that such referral would have seriously backfired. A referral would not have led to an environment conducive to the arrest of Al-Bashir, but quite the opposite: it could have incentivized the long called for use of an Article 16 deferral.

  1. Whatever the ratio decidi, Al-Bashir must be arrested and surrendered

On the eve of Al-Bashir’s travel to Johannesburg, Judge Tarfusser (acting as an ICC Single Judge) had affirmed (.pdf) to the RSA’s ambassador that there was nothing to consult upon (under article 97 Rome Statute) with the Court regarding the obligation to arrest Al-Bashir, as there was a very clear ICC case law establishing that Sudan’s Head of State immunities had been implicitly waived by the UNSC. Very intuitively, Judge Tarfusser responded to the Ambassador’s call for revisiting this case law that if the matter went before a full chamber, it “could decide in a slightly different way. I cannot imagine completely opposite but in a slightly different way.”

Judge Tarfusser was right! PTC II (with Tarfusser as Presiding Judge) decided in a different but not opposite way: the obligation to arrest Al-Bashir stands but his immunity has not been waived. In the Decision on South Africa’s failure to arrest and surrender Al-Bashir (South Africa Decision), PTC II exposed three theories on the inapplicability of immunities before the court of a State implementing an ICC arrest warrant.

First, the PTC II completely discarded its previous holding in Decision on Malawi’s Failure to Arrest and Surrender Al-Bashir (.pdf) (Malawi Decision) and the Special Court of Sierra Leone’s Decision on Taylor Immunity (.pdf). Indeed, the PTC II acknowledged to be ”unable to identify a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court.” (para. 68) Note that the PTC was cautious enough to underline that this finding did not apply to its own exercise of jurisdiction, but to the arrest and surrender, which is an exercise of jurisdiction that only States can undertake.

Second, the PTC decided not to go by the Decision on DRC’s Cooperation Regarding Al-Bashir’s Arrest and Surrender (.pdf) (DRC Decision) where it held that the UNSC had implicitly waived the immunity of Al-Bashir. Three years earlier, this theory seemed useful as it served to reject the African Union (AU)’s arguments (.pdf) against the Malawi Decision. According to the DRC Decision, Sudan’s obligation under Chapter VII to cooperate fully fitted within the exception provided in article 98 (1) Rome Statute, which reads: ”unless the Court can first obtain the cooperation of that third State [Sudan] for the waiver of the immunity.” The implicit waiver under Chapter VII also tackled, on the premise of Article 103 UN Charter, DRC’s claim that it was bound by the AU resolutions obliging its State parties not to arrest Al-Bashir. On this conflict of norms between the ICC order and the AU order, the PTC II used the Chapter VII’s trumping power to declare that ‘the DRC cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary.’

The DRC Decision had been reiterated by the ICC several times since 2014. However, during the hearing on its non-compliance, the RSA raised a fair point on the interpretation of the UNSC’s resolutions in a way consistent with existing law on immunities, questioning whether the immunities Heads of States are normally entitled to under customary international law can be implicitly waived. The RSA referred to various sources including article 32 of the Vienna Convention on the Law of Diplomatic Immunities (.pdf), which specifies that a waiver must always be express. The RSA also argued that ”if the UNSC intended to remove immunity, it could have clarified the situation by adopting another resolution.” This is indeed a suggestion I made in my previous post; not as sine qua non for finding that Al-Bashir’s immunity did not apply but simply as an aid for the ICC to uphold its position.

Despite Judge Tarfusser’s confidence in the DRC Decision’s ratio decidendi, PTC II decided to hold that no such waiver was necessary for the immunity of Al-Bashir to be considered irrelevant. The PTC rationale is simple: Sudan’s obligation to fully cooperate with the Court, which is underpinned by the Chapter VII power character of UNSC Resolution 1593, puts it in a position analogous to those of States Parties to the Rome Statute.

The gist of the reasoning is that the UNSC, when referring the situation in Darfur, submitted Sudan to the Rome Statute legal framework, which includes Article 27 (2) on the irrelevance of official capacity. In the particular situation in Darfur, the immunities to which Sudan’s officials are normally entitled under international law are not waived, they are simply irrelevant – as if it was a State party. As the PTC II put it, Sudan is subjected to “a sui generis regime” that extends ”the effect inter partes of the Statute, an international treaty” to a State that has not voluntarily accepted it. The caveat to this sui generis regime is that Sudan’s analogous position is only for the limited purpose of the situation in Darfur. In other words, the immunities from arrest and surrender of Sudan’s high ranking officials are relevant for crimes committed in, let’s say, Uganda.

This is slightly different from the DRC Decision in that while the PTC still heavily relies on the Chapter VII character of the obligation to cooperate fully, it is not dependent on the UNSC’s intent when adopting a referral to the ICC. The Chamber indeed insisted on this and emphasized:

‘it is immaterial whether the Security Council intended – or even anticipated – that, by virtue of article 27(2) of the Statute, Omar Al-Bashir’s immunity as Head of State of Sudan would not operate to prevent his arrest sought by the Court […]’ (par. 95)

This is a very important point since, as I will show below, the Court cannot count on the UNSC to support it in its prosecution of Al-Bashir.

Furthermore, the South Africa Decision affirms that States cannot rely on Article 98 (1) for justifying non-cooperation, as this provision is addressed to the Court solely. According to PTC II, the option States have if the Court makes a request contrary to Article 98 is to appeal the decision; not to ‘consult’ with the Court as RSA did. In contrast, the DRC Decision had called on the Congolese authorities to consult the Court when there is a problem related to article 98(1) of the Statute. PTC II acknowledged that the DRC Decision misled the RSA. While the OtP argued that the RSA abused the consultation process provided in article 97 to create a legal impediment to rely upon, the Chamber credited this ‘attempt’ to consult as one point in favour of not referring the matter to the ASP and/or UNSC.

  1. This will stay between us!

As anticipated, the PTC II found that it was unwarranted to refer the failure of RSA to arrest Al-Bashir. To justify its decision, the PTC II noted that the RSA’s domestic courts had already found that the State had breached its obligations. Thus, with the RSA domestic courts holding and its decision, PTC II considered that any possible ambiguity as to the law concerning the arrest and surrender of Al-Bashir had now been removed.

The remaining question was whether the ICC could really count on external actors to force compliance with its request to arrest and surrender Al-Bashir. The PTC noted that in all previous instances where a State’s failure to arrest Al-Bashir had been referred to the UNSC, the latter also failed to take any type of measure whatsoever against the non-cooperating State or Sudan. This is indeed the first acceptance from an ICC Chamber that the ‘last resort’ mechanism provided in Article 87(7) is ineffective, at least with regard to the arrest of Al-Bashir.

To tell the truth, a UNSC meeting on the failure of the RSA would have probably turned in a session where the ICC case law on immunity was trashed by some UNSC members. A month before the PTC delivered the South Africa Decision, Fatou Bensouda was admonishing the UNSC for the absence of concrete action in response to decisions of non-compliance referred to it by the Court. In response, the Russian representative affirmed once more that:

‘the obligation to cooperate, as set forth in resolution 1593 (2005), does not mean that the norms of international law governing the immunity of the Government officials of those States not party the Rome Statute can be repealed, and presuming the contrary is unacceptable.’

The AU position on the arrest of Al-Bashir is also well known known. African States sitting at the UNSC constantly remind it of their opposition to the arrest and surrender of Al-Bashir and reiterate their call for the use of an Article 16 deferral. For instance, Egypt declared:

‘we reject any action taken against any African country under the pretext that it has not complied with its obligations under the Rome Statute or on the basis of its non-cooperation pursuant to Security Council resolution 1593 (2005), because it did not arrest President Al-Bashir and hand him over to the ICC’

A referral of the RSA’s non-compliance to the UNSC could have turned to be a meeting where an Article 16 deferral would actually be granted. China, the AU and the Arab League, support a deferral of the proceedings against Al-Bashir. Even the United States have admitted that Sudan has taken meaningful positive steps with respect to the conflict in Darfur, and worked in cooperation with the US government to address regional conflicts. After all, let’s not forget that the RSA is the State that made a proposal for amending Article 16 of the Rome Statute, which would provide for the General Assembly to assume this power where the UNSC fails to respond to a request. Despite the repetitive requests for Article 16 Rome Statute to be triggered, the UNSC has not formally decided upon this matter yet.

On 29 March 2017, Al-Bashir travelled to Jordan, a State party to the Rome Statute, for a meeting of the Arab League and once again he was not arrested. There will be proceedings similar to the ones for RSA to take place at the ICC. The PTC will probably affirm its new case law on how Al-Bashir’s immunity does not apply. However, I very much doubt that the ICC will take the chance to refer Jordan to the UNSC, unless it is ready to accept the possibility of a deferral.

MH17 Downing Suspects to be Prosecuted Before Dutch Domestic Courts – An Obstacle or an Advantage for International Justice?

by Aaron Matta

[Dr. Aaron Matta is an expert in international law with working experience at International Courts. He also recently co-founded The Hague Council on Advancing International Justice, a network for and with practitioners, academics, and policymakers in the area of international justice. I would like to thank Dr. Philip Ambach and Anda Scarlat for their feedback on earlier drafts of this commentary.The views expressed here are of the authors alone]

After nearly three years since the downing of the Malaysia Airlines MH17 flight, the countries comprising the Joint Investigation Team (JIT) – namely Australia, Belgium, Malaysia, the Netherlands and Ukraine – announced on 5 July their decision to initiate domestic investigations and prosecutions in the Netherlands in relation to the incident. To facilitate these procedures, a bilateral treaty on international legal cooperation between Ukraine and the Netherlands was signed on July 7. The treaty provides that those suspected of downing flight MH17 can be prosecuted in the Netherlands in respect of all 298 victims, which originate from 17 different countries. This means that all next of kin will have the same rights in the Dutch criminal proceedings regardless of their nationality.

These new developments are not surprising given that most of the victims were Dutch and the Netherlands has led the investigation and coordinated the international team of investigators thus far. This move also shows the determination of the JIT states to bring to justice those responsible, particularly after failed attempts to establish an ad hoc international MH17 Court had failed due to Russia’s veto in the United Nations Security Council. However, the recent decision to prosecute suspects in a Dutch domestic court raises challenges, particularly in view of the ongoing preliminary examination in Ukraine by the Prosecutor of the International Criminal Court (ICC). While international law provides several legal avenues for redress for this incident, in both criminal and civil proceedings, – which I extensively analyzed in an earlier blog post – the avenues analyzed here fall under the category of individual criminal responsibility.

So why can the Netherlands exercise its criminal jurisdiction in this case, if the incident occurred in Ukraine? In principle, Ukraine would retain the primary right to investigate and prosecute those responsible according to the legal principle of territorial jurisdiction – based on where the crime was committed. The Ukrainian leadership determined, however, that it would be very difficult to carry out the investigations and prosecutions due to the ongoing conflict in the Donbass region, where the MH17 incident took place. As a result, Ukraine triggered the ICC’s jurisdiction over crimes allegedly committed on its territory from 20 February 2014 onwards via two declarations under the ICC Statute, requesting the ICC Prosecutor to investigate the matter. Currently, following these requests, the ICC Prosecutor is undertaking a preliminary examination that could lead to the opening of a criminal investigation. Such investigation could potentially include the downing of the MH17 flight as an alleged war crime.

Nonetheless, the other JIT states, including the Netherlands, can also assert their domestic jurisdictions over this matter based on the legal principle of passive personality jurisdiction, due to the fact that their citizens were killed in this incident. In light of last week’s decision, the Dutch domestic criminal specialized courts will now be able to investigate and prosecute those responsible for the downing of MH17 on the basis of four main legal sources: first, as domestic crimes under the Dutch penal code, such as murder or manslaughter; second, as an international crime under the Dutch International Crimes Act of 2003; thirdly, as a crime on the basis of the 1971 Montreal Convention, which allows the domestic prosecution of any person committing unlawful acts against the safety of civil aviation; and finally, the bilateral judicial cooperation agreement recently signed with Ukraine.

However, the concurrent use of multiple criminal prosecution mechanisms, namely the Dutch domestic courts and the ICC, may cause difficulties. First, issues may arise under the basic principle of ‘ne bis in idem’, which states that no person can be tried twice for the same crime. Thus, if a Dutch court prosecutes an individual, this may prevent the ICC from prosecuting the same individual for the same crime. It is therefore essential for the JIT states to coordinate and cooperate with each other, and more importantly with the ICC, when it comes to gathering evidence, selection of suspects and conducting fair trials, to avoid duplication and wasting resources.

In addition, an investigation by the Dutch national authorities will most likely block any investigation by the ICC by virtue of the latter’s complementarity to national courts of its States Parties. According to this principle, states are primarily responsible for investigating and prosecuting international crimes. The ICC only intervenes if states parties to the Rome Statute of the ICC are unable or unwilling to prosecute individuals’ suspected/accused of the most serious crimes of concern to the international community. With this in mind, a division of labor between the different jurisdictions, and among the different actors involved, could be arranged. For example, the Netherlands could focus in prosecuting those most responsible for the MH17 incident, while the ICC concentrates its efforts and limited resources to investigating other crimes committed in the Ukrainian territory.

Other challenges that will be faced by all of the jurisdictions involved are, for example, meeting the high standards of proof required for establishing the suspects’ guilt beyond reasonable doubt. This includes notably the requirement to prove the alleged perpetrator’s ‘knowledge and intent’ to commit a war crime. Additionally, there will be several procedural obstacles when it comes to judicial cooperation and the sharing of crucial potential evidence. Clear examples of this are the thousands of intercepted telephone calls gathered by Ukrainian law enforcement and intelligence agencies. While some of this evidence can easily be shared with the JIT investigators, as well as with the Dutch and ICC prosecutors, in several instances much of this data cannot be shared due to some restrictions in the Ukrainian legal system. This is the case, for example, with evidence that may have been acquired or intercepted following special legal procedures into the downing of the MH17, such as investigations carried out in the interest of state security and the fight against terrorism.

The bilateral agreement between the Netherlands and Ukraine addresses some of these issues by reducing or simplifying some procedural hurdles. For example, the agreement tackles the issue of examination of Ukrainian defendants via video link or the transferring of enforcement of prison sentences that may be imposed, due to extradition restrictions in the Ukrainian legal system.

Finally, a major obstacle will prove to be obtaining custody of the potential suspects, particularly if they are Russian nationals and/or located on Russian territory. The Russian Federation will most likely not be willing to extradite potential Russian suspects, in spite of international pressure, in light of the current geopolitical tensions prevailing in the region. In this respect, trials in absentia (where the suspect is absent from the legal proceedings), which are provided for in the Dutch criminal code could prove to be a limited yet practical solution.

Regardless of these numerous challenges, the decision to initiate judicial proceedings in the Netherlands providing a solid avenue for legal redress for the incident should be welcomed. Such an initiative would further show that the JIT states are serious about seeking justice for the victims of this tragic incident and their relatives.

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.