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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!

ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL

by Kevin Jon Heller

One of the most basic assumption of ICL is that an act cannot be a war crime unless it violates a rule of international humanitarian law (IHL). Article 6(b) of the London Charter criminalised “War Crimes: namely, violations of the laws or customs of war.” Article 3 of the ICTY Statute provides that “[t]he International Tribunal shall have the power to prosecute persons violating the laws or customs of war,” while Article 4 of the ICTR Statute provides that “[t]he International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.” And Article 8 of the Rome Statute criminalises “[g]rave breaches of the Geneva Conventions of 12 August 1949”; “[o]ther serious violations of the laws and customs applicable in international armed conflict”; [i]n the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949″; and “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character.” In each and every case, war crimes are limited to violations of IHL.

No more. The Appeals Chamber (AC) at the ICC has just unanimously held in Ntaganda that a perpetrator can be convicted of a war crime even if his act does not violate IHL. That decision is not simply “unprecedented,” as the AC openly acknowledges. It is simply incorrect — as this post will demonstrate.

The judgement itself addresses allegations that Ntaganda is criminally responsible for two war crimes — rape and sexual slavery — involving children forcibly recruited into his organised armed group, the UPC/FPLC. Ntaganda challenged that allegation, arguing that “crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law.” The Trial Chamber (TC) disagreed, in a judgment ably discussed and critiqued by Yvonne McDermott. Ntaganda appealed, giving rise to this judgment. Here is the AC’s “key finding”:

2. Having regard to the established framework of international law, members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under article 8 (2) (b) (xxii) and (2) (e) (vi) of the Statute when committed by members of the same armed force or group.

Before turning to the logic of the judgment, it is important to be very precise about the terms of my quarrel with the AC. I completely agree with the AC that there are situations in which a member of an armed force can, in fact, commit the war crime of rape or the war crime of sexual slavery against a member of the same armed force. As the AC rightly notes, although the Third and Fourth Geneva Conventions do not apply to acts committed by a combatant against someone from the same side of the conflict — whether by virtue of membership in that same armed force (GC III) or by nationality (GC IV) — the First and Second Geneva Conventions contain no such limitation:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Nothing in GC I or GC II suggests, however, that IHL protects all members of the armed forces against member-on-member violence. On the contrary, let’s take a look at the AC’s statement again, with the critical language in bold:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Under GC I and GC II, in other words, member-against-member violence violates IHL only if the victim is wounded, sick, or shipwrecked. If the victim is none of those things — if he or she is not hors de combat — that violence may well violate a state’s domestic criminal law, but it does not violate IHL.

If the AC had limited the scope of its judgment to rape and sexual slavery committed against child soldiers who were hors de combatdefined by the ICRC, in relevant part, as “anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness” — it would have been on firm ground. But that is not what it has done. On the contrary, the AC goes to great lengths to make clear that member-against-member rape and sexual slavery are war crimes even if the victim is an active combatant –– ie, one who is not hors de combat. Here is the relevant paragraph (emphasis mine):

64. With regard to the second issue – namely whether Status Requirements exist in international humanitarian law specifically for the war crimes of rape and sexual slavery – the Appeals Chamber observes that the prohibitions of rape and sexual slavery in armed conflict are without a doubt well established under international humanitarian law. As noted by the Trial Chamber, protection under international humanitarian law against such conduct generally “appear[s] in contexts protecting civilians and persons hors de combat in the power of a party to the conflict”. In this regard, the question arising before the Appeals Chamber is whether such explicit protection under international humanitarian law suggests any limits on who may be victims of such conduct. In the view of the Appeals Chamber, there is no conceivable reason for reaching such a conclusion.

Notice the bold language, because it’s critical — and wrong. IHL protection does not “generally” apply only to civilians and combatants hors de combat. On the contrary, each and every IHL convention applies only to those two categories of individuals. As we have seen, the AC itself acknowledges that limitation with regard to all four of the Geneva Conventions. It cites no other source of IHL, instead simply noting that the ICRC states in its new commentary to GC I “that Common Article 3 protects members of armed forces against violations committed by the armed force to which they belong.” But that statement is incomplete and misleading, because the ICRC makes unequivocally clear that CA3’s prohibitions apply only to individuals who are hors de combat:

518  Subparagraph (1) covers all ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’. The article does not expand on these notions and this part of the article did not give rise to much discussion at the 1949 Diplomatic Conference. The protection afforded under this subparagraph requires that the person be in the power of a Party to the conflict (see section E.4).
519  The protection of persons not or no longer participating in hostilities is at the heart of humanitarian law. The persons protected by common Article 3 are accordingly described by way of explicit delimitations: ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’ (emphasis added). Parties to a non-international armed conflict are under the categorical obligation to treat these persons humanely, in all circumstances and without any adverse distinction.

The Trial Chamber’s judgment is no better. The TC rests its conclusion that member-against-member rape is a war crime even when the victim is an active combatant solely on two things: the Martens Clause and Art. 75 of the First Additional Protocol (AP I). Here is paragraph 47:

While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. In this regard, the Chamber recalls the Martens clause, which mandates that in situations not covered by specific agreements, ‘civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. The Chamber additionally notes that the fundamental guarantees provisions [in Art. 75] refer to acts that ‘are and shall remain prohibited at any time and in any place whatsoever’ and as such apply to, and protect, all persons in the power of a Party to the conflict.

I don’t have time to get into a detailed discussion of the Martens Clause. Suffice it say here that it is very unlikely that the Clause can ever be relied upon to expand IHL not only beyond conventional law, but even beyond customary IHL — and as the AC itself acknowledges (para. 60), there is literally zero state practice indicating that member-against-member mistreatment is a war crime even when the victim is an active combatant. Even Antonio Cassese, no stranger to judicial activism, dismisses this “norm-creating” reading of the Martens Clause as “radical.” As he says, “[s]urely the Clause does not envisage — nor has it brought about the birth of — two autonomous sources of international law, distinct from the customary process.”

As for Art. 75 of AP I, the Protocol’s “fundamental guarantees” provision, the TC’s position is deeply problematic. Here is n. 111:

Article 75 of Additional Protocol I refers to ‘a Party to the conflict’ (emphasis added) and therefore does not limit the fundamental guarantees to persons in the power of the opposing party.

The TC conveniently fails to note that Art. 75 applies only to international armed conflict — and that Art. 4 of AP II, the “fundamental guarantees” provision in the NIAC Protocol, is specifically limited to “persons who do not take a direct part or who have ceased to take part in hostilities” (ie, civilians and combatants hors de combat).

Given that conventional IHL uniformly requires the victim of member-against-member mistreatment to be hors de combat, on what basis does the AC hold that the status of the victim is irrelevant? The answer comes from this paragraph (emphasis mine):

65. The Appeals Chamber agrees with the Trial Chamber’s finding that “there is never a justification to engage in sexual violence against any person; irrespective of whether or not this person may be liable to be targeted and killed under international humanitarian law”. Accordingly, in the absence of any general rule excluding members of armed forces from protection against violations by members of the same armed force, there is no ground for assuming the existence of such a rule specifically for the crimes of rape or sexual slavery.

This is simply incorrect. To begin with, there is a specific rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: namely, the rule that says violence in member-against-member situations violates IHL only when the victim is hors de combat. The AC’s judgment suggests that states not only had to specify that rule in the various IHL conventions, they also had to add: “oh, and by the way, this limit means that mistreating active combatants doesn’t violate IHL.” But that’s silly: the former implies the latter. After all, expressio unius est exclusio alterius is a basic rule of treaty interpretation.

But even if that was not the case, there would still be a general rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: the rule that says a war crime must involve a violation of IHL. As noted at the beginning of this post, that is one of the most basic assumptions of IHL. Not all violations of IHL are war crimes, but all war crimes are violations of IHL. So the burden of proof was not on Ntaganda to show that rape and sexual slavery cannot be war crimes in member-against-member situations if the victim is an active combatant. The burden was on the prosecution to prove that such acts actually violate IHL. Because if they don’t — and they don’t, as we have seen — the Court has no jurisdiction whatsoever over Ntaganda’s acts, at least insofar as they are legally characterised as war crimes.

In the end, the AC’s decision in Ntaganda is little more than the latest iteration of the Court’s willingness to rely on teleological reasoning when the Rome Statute does not protect victims as much as the judges think it should. No one is in favour of raping and sexually enslaving child soldiers. But the solution isn’t to detach the law of war crimes from its moorings in IHL by holding — if only implicitly — that an act can be a war crime even if it does not violate IHL. To do so is not only legally indefensible, it risks delegitimising both the Court and the law of war crimes itself.

Taiwan’s Constitutional Court Rules in Favor of Same-Sex Marriage, and Cites U.S. Supreme Court (But Not For Law)

by Julian Ku

Grand Justices of the Constitutional Court, Judiciary Yuan, Republic of China – Taiwan

In a first for Asia, Taiwan’s Constitutional Court ruled today (with two dissents) that Taiwanese law limiting marriage to a man and a woman violated the Republic of China’s constitutional guarantee of “equality before the law.” (Taiwan is home to the exiled Republic of China government, and its constitution is an amended version of one adopted on Mainland China back in 1946).
I don’t claim to be an expert on the Taiwan-ROC Constitution.*  I also haven’t read the decision very carefully, and do not purport to offer any deep analysis of the decision here.  But to build off Anthea’s great post from Monday, I will note that the decision (in Chinese here)  cites the U.S. Supreme Court’s decision in Obergefell v. Hodges.**  But it doesn’t cite Obergefell’s legal analysis on the relationship between same-sex marriage and equality, which actually is quite on point.  Rather, the Taiwan court cites Obergefell in footnote 1 as one of several sources for the proposition that sexual orientation is an immutable characteristic. (In a somewhat ironic note, the decision also cite findings of the World Health Organization, whose governing body just recently excluded Taiwan from participating as an observer).

I think there are many good reasons to cite, or not cite, foreign court decisions when interpreting a domestic constitution. I can see the Taiwan-ROC Constitutional Court, which is still a relatively new institution, wanting to cite foreign authority to bolster the legitimacy of its decision.  But I can also see that the Court would want to make this decision as domestic as possible to ward off the very substantial domestic criticisms that are already being made of the results of this decision.  The Taiwan-ROC Court made a reasonable choice to cite the U.S. Supreme Court in a limited and non-legal way.  I don’t fault it (or the U.S. Supreme Court) for avoiding foreign and international legal authority.  No doubt there was a jurisprudential influence from the U.S. and other jurisdictions in this decision, but I wonder if it was in any way decisive.

There are, of course, international relations implications from this decision.  Taiwan, under the current sort-of-anti-China governing party, is carving an international image for itself as a socially progressive haven in a relatively socially conservative Asia.  This can’t hurt Taiwan as it continues to seek ways to maintain its separate identity from China in the eyes of U.S. and European elites. The mainland has a similar “equality before the law” provision in Article 33 of its Constitution as the one that is the main basis for the Taiwan court decision, but I wouldn’t count on any action on that front in the near future.

*But I did have noodles in Taipei with a member of the Taiwan Constitutional Court not two weeks ago and he gave me no clues about this pending decision.

**My original post actually got this wrong, claiming there was no citation at all. Sorry for the confusion. But my larger point stands.

Pledging American Exceptionalism: US Supreme Court Justice Gorsuch on International Law

by Anthea Roberts

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.]

American exceptionalism is nothing new. Nor are debates about whether it is appropriate for US courts to look to foreign or international law, particularly when interpreting the US Constitution. Yet now-Justice Gorsuch’s recent testimony on the issue during his confirmation hearing still took my breath away. You can hear the question posed and his answer here (the exchange is also transcribed below). I think that every international lawyer should watch this clip. It’s exceptional …

Question by Sasse: As a sitting Supreme Court justice tasked with upholding the US Constitution, is it ever appropriate to cite international law and, if so, why?

Answer by Gorsuch: It’s not categorically improper. There are some circumstances when it is not just proper but necessary. You’re interpreting a contract with a choice of law provision that may adopt a foreign law. That’s an appropriate time to look at any choice of law provision by any party in any contract. Treaties sometimes require you to look at international law by their terms.

But if we’re talking about interpreting the Constitution of the United States, we have our own tradition and own history. And I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us. For all the imperfections of our rule of law, it is still the shining example in the world. That’s not to say we should sweep our problems under the rug or pretend that we’ve solved all of the problems in our culture, in our society, in our civic discourse. But it is to say that we have our history and our Constitution and its by “we the people.”

And so, as a general matter, Senator, I would say it is improper to look abroad when interpreting the Constitution — as a general matter.

So what do I find remarkable about this interaction?

First, the conflation of international law and foreign law is disconcerting. When asked about whether it is appropriate to cite to international law, Gorsuch immediately turns to choice of law provisions in contracts. But that is typically a question of foreign law, not international law. Certainly, both are non-American law. Yet the two of them raise distinct questions, particularly given that the United States contributes to the formation of international law, is bound by international law, and has hooks in its Constitution for looking to international law. As for when Gorsuch says that treaties sometimes require you to look at international law … I feel like telling him that, actually, treaties are international law. I have been critical elsewhere of how the US Supreme Court can interpret a treaty without even referencing the Vienna Convention on the Law of Treaties.

Second, the statement “I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us” is particularly striking. On a descriptive level, there is something to what Gorsuch says. Academics and courts in many states regularly look to US case law, but the same is much less true in reverse. I find clear evidence of this asymmetry in my forthcoming book Is International Law International? (OUP, 2017) where international textbooks from around the world look to US case law while US international law textbooks look to … US case law.

But on a normative level, I find this statement troubling. Why look at the experience of other states? For me the answer is simple: because you might learn something. You don’t have to be bound by what you find, but it might be instructive given that other states have often faced similar issues and the United States does not have a monopoly on good ideas. I fully accept that judges in a state can privilege that state’s own history and tradition when interpreting the law and that this might be particularly appropriate when interpreting that state’s constitution. But I don’t think that this requires them to ignore the histories and traditions of everyone else.

The double standard implicit in what he is saying is also grating. Instead of taking the position that “all states should look to their own history and tradition,” Gorsuch instead endorses the idea that other states not only do look to the United States (descriptive claim), but that they should look to the United States (normative claim), even though the US courts should not reciprocate. What is good for the goose is certainly not good for the gander.

Third, the next sentence is the kicker for me: “For all the imperfections of our rule of law, it is still the shining example in the world.” I find this exceptionalist rhetoric hard to stomach. It is also deeply ironic given that the whole world currently is looking at the United States and the Trump administration, but no one would say that this is because the United States represents the “shining example” of the “rule of law” in the world. In fact, the United States comes in 18th out of 113 countries in the World Justice Project’s rule of law rankings, and the Economist recently downgraded the United States to being a flawed democracy, partly because of a loss of faith in democracy in the United States, particularly by the younger generation.

Of course, I am not the intended audience for Gorsuch’s remarks. He is clearly playing to a domestic, political audience, not a foreign, internationalist one. To my ears, Gorsuch sounds like he is pledging a fraternity, but the institution to which he is pledging is American exceptionalism. Although this topic is contentious in the United States, the idea that it might be appropriate or useful to cite to international or foreign law is uncontroversial in many other states. I can’t imagine many judges in other common law jurisdictions, like Australia, Canada or the United Kingdom, feeling the need to make this sort of pledge. Nor am I am aware of judges in civil law states, like France and Germany, making similar such pledges.

Even though Gorsuch is not addressing his comments to people like me, the nature of the internet means that I form part of his audience nonetheless. And I suspect that many foreign internationalists would have a similar reaction to me. This failure to value the practice of others and to engage in a dialogue is one of the explanations that David Law and Mila Versteeg give about their empirical finding of the declining influence of the United States in comparative constitutional law (another is that constitutions around the world are increasingly departing from, rather than following, the US model). This finding also contrasts with the rising influence of the courts of some other states that regularly engage in this sort of discourse, like Canada, Germany, India, South Africa and the United Kingdom.

Whatever your views on this clip, I think that this exchange would make a great classroom teaching tool because it succinctly sets out a particular perspective and provides a useful starting point for debate. I would be interested if anyone has a good counterpoint clip that pithily sets out the opposite perspective as the two would be great to pair. In the end, part of what we need to take away from this sort of exchange is just how different people’s starting points of analysis can be when it comes to this question and how these differences may vary considerably across states.

Why Unilateral Humanitarian Intervention Is Illegal and Potentially Criminal

by Kevin Jon Heller

I read Jennifer Trahan’s post yesterday with great interest — but not surprisingly I disagree with it. Before I get to my disagreements, though, I think it’s bizarre that we are all debating the legality of unilateral humanitarian intervention in the context of the recent US missile attack on Syria. It simply beggars belief to think that the attack was in any way motivated by humanitarian concerns. Chemical weapons, which have killed perhaps 2,000 civilians, are not the problem in Syria; conventional weapons, which have killed hundreds of thousands, are the real threat. And the US has done absolutely nothing to protect Syrians from conventional weapons — it has simply funnelled even more into the country to support various rebel groups (including some that are allied with al-Qaeda) in their struggle against Assad. The US cares about protecting its own interests in Syria, such as preventing chemical weapons from being used against Americans. (The real message of the completely ineffectual attack.) It does not care about the lives of ordinary Syrians, as the ever mounting death-toll indicates.

But let’s put aside the context of the missile attack and focus on Trahan’s legal claims. The first is that unilateral humanitarian intervention (UHI) — the qualifier, of course, is critical — can be legal in the right circumstances. The post, however, doesn’t even come close to establishing that claim. Just consider what Trahan cites in defence of it:

[1] NATO’s intervention in Kosovo, in which “all NATO members supported the intervention designed to stave off ethnic cleansing.” Trahan openly acknowledges that “many did not defend it as ‘humanitarian intervention’ per se, except Belgium” — but that gives away the ballgame. If the 26 other NATO states did not invoke UHI, the attack does not help establish UHI’s legality. As the ICJ pointed out in the Nicaragua case (para. 207), not even the Court itself has the “authority to ascribe to States legal views which they do not themselves advance.” So it doesn’t matter whether Trahan and other scholars would like to describe Kosovo as an example of UHI. All that matters is that NATO states could have invoked UHI but chose not to.

It is also telling that Trahan fails to point out that the Kosovo intervention met with significant international criticism. Here are Vaughan Lowe and Antonios Tzanakopoulos in the Max Planck Encyclopedia:

33  The response of other, non-NATO, States to arguments that there was a legal basis for the Kosovo bombing campaign and for a right of humanitarian intervention was overwhelmingly negative. The Non-Aligned Movement (NAM), numbering well over half of the Member States of the UN, unequivocally condemned the use of force against the (then) FRY, as did many other States, some of which are nuclear powers. In these circumstances, no right of unilateral forcible humanitarian intervention can be said to have emerged as a rule of customary international law.

[2] UK and US no-fly zones in Iraq. Once again opinio juris is lacking: the coalition initially provided no legal justification for the no-fly zones, and the US later justified them as self-defence (against threats to coalition aircraft, a wonderfully circular argument).

[3] ECOWAS’s interventions in Liberia in 1990 and Sierra Leone in 1998. Same problem: as Adam Roberts has pointed out, ECOWAS never invoked UHI to justify its actions. It relied instead on provisions in its own founding treaty.

[4] The UK’s endorsement of UHI in Syria, particularly in the context of the 2013 sarin gas attack that killed hundreds if not thousands. Unlike the other examples, this endorsement does, in fact, contribute opinio juris in favour of UHI.

So, there we have it: one state that explicitly and regularly endorses a right of UHI.  And against that, we have the unequivocal rejection of UHI by the 120 states that are part of the Non-Aligned Movement and the 134 states that are part of the Group of 77, which includes major powers like China, India, and South Africa. (The two groups obviously overlap.) How any scholar could conclude that customary international law nevertheless recognises a right of UHI, however limited, is simply beyond me.

For similar reasons, I also reject Trahan’s confident claim that UHI could never be criminal. Here is what she says:

Humanitarian intervention, narrowly construed, then clearly also would not constitute the crime of aggression, which is poised to activate this December 2017 before the International Criminal Court. (Anything in a legal “grey area” is excluded from that definition—and, at minimum, humanitarian intervention (sometimes supported and sometimes invoked) is within that legal grey area. The U.S., a non-State Party to the ICC’s Rome Statute, would be exempt from the crime’s jurisdictional reach, even if it does activate.)

I disagree. To begin with, during the Kampala Review Conference in 2010, states soundly rejected the US’s attempt to specifically exclude UHI from the crime of aggression. Here is the text of the US’s failed Understanding:

It is understood that, for purposes of the Statute, an act cannot be considered to be a manifest violation of the United Nations Charter unless it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith, and thus an act undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6, 7 or 8 of the Statute would not constitute an act of aggression.

More importantly, the fact that scholars insist UHI can be legal does not make the legality of UHI fall into a “grey area.” On the contrary, it is difficult to imagine any issue that is more black and white given state practice. Article 2(4) of the UN Charter is clear: force is legal only when authorised by the Security Council or in self-defence. UHI does not involve the former by its very definition, and there is no argument de lege lata that UHI can be justified as a form of self-defence, because it does not involve an armed attack on the intervening state. Adil Haque made that point in response to Jens’s recent post, and here are Lowe and Tzanakopoulos again:

23  Humanitarian intervention in order to alleviate the suffering of a local population cannot, without more, be justified as self-defence. Self-defence under Art. 51 UN Charter requires that an armed attack occur against a State. In most cases, widespread violations of human rights will not reach the gravity threshold of an armed attack. Even if the oppression does reach the threshold of an armed attack, however, there will be no armed attack against a State, but at most an armed attack against the population of the State by or with the support or inaction of State authorities. The right to self-defence under international law vests in States and not in sub-State entities such as the local population. Moreover, the oppression will, ex hypothesi, not emanate from another State, but will be by the government upon its own people.

The illegality of UHI under Art. 2(4) is, of course, not set in stone. As Lowe and Tzanakopoulos rightly note, UHI could become legal through subsequent state practice that results in a new interpretation of the provision or (possibly) through the emergence of a supervening customary rule. But that has clearly not happened, given G77 and NAM’s ongoing and unwavering opposition to UHI.

It is unlikely, of course, that the ICC will ever prosecute a government official who is responsible for preparing, planning, initiating, or executing a UHI — and not simply because of the new crime of aggression’s crimped jurisdictional regime. But that does not mean UHI does not manifestly violate the UN Charter. It most certainly does.

Symposium on the Nuremberg Trials

by Kevin Jon Heller

The Loyola of Los Angeles International and Comparative Law Review has just published a special issue on the Nuremberg trials. It contains many excellent contributions, including articles by Hilary Earl, David Fraser, Greg Gordon, and Jonathan Bush. I have also contributed a short chapter, entitled “Taking a Consenting Part: The Lost Mode of Participation,” which discusses a mode of participation developed by the NMTs and then promptly forgotten — for better or for worse — by international criminal law.

All of the articles in the special issue are free to download here.

So . . . What do you think should be in your international law textbook?

by Duncan Hollis

I’m honored to have been invited by Allen Weiner to join him in the forthcoming 7th edition of the textbook, International Law, which he previously edited with the late Professor Barry Carter. We’re just beginning the effort of pulling together the new edition for Aspen this Spring and Summer.

Before we get too far along, I wanted to invite feedback from readers who have used the textbook on what they think of the text.  In particular, we’re interested in hearing about areas that we should be focusing on more closely or areas that we need to avoid cutting as we try to keep the text to a manageable length.  That said, I’d welcome more general feedback on what you like or don’t like about the textbook as well.  Moreover, for those of you who haven’t read it, I’d be interested in suggestions for cases or materials you’ve always wanted to see included in a basic introductory text for international law that have yet to receive sufficient attention.

Of course, I can’t guarantee that we’ll be able to respond to any and all suggestions, let alone adjust the next edition too dramatically from its roots.  Still, I know I speak for Allen in saying that we want to have an open door to new ideas and concepts.  So, feel free to comment below or e-mail me directly if you have suggestions, criticisms, or other thoughts to offer.  Thanks!