17 Apr Defining Incitement to Genocide: A Response to Susan Benesch
[Mark Drumbl is the Class of 1975 Alumni Professor of Law, Washington and Lee University School of Law.]
Susan Benesch’s VJIL article is timely, thoughtful, and important. She insightfully sets out the catalytic relationship between hate propaganda and genocide. Her comparison of the methodological similarities between the Rwandan and Nazi German contexts is instructive. The mainstreaming of hate-mongering is a condition precedent for genocide to become truly massive. Consequently, if the criminal law could shut down hate-mongering before actual genocide – for example, by incapacitating the conflict entrepreneur before violence is normalized – then it might fulfill a preventative function. Susan’s proposed reforms to the definition of incitement (the “reasonably possible consequences” test) take us some of the way there. In all likelihood, however, prevention through criminal punishment would require an even lower threshold for incitement than Susan’s proposed test. If a speaker can only commit incitement to genocide if the audience “must already be primed, or conditioned” (p. 494) to respond, then might it already be too late? Deterrence no longer may be possible – assuming the criminal law ever can serve a deterrent function in this situation. As a matter of pragmatics, I wonder whether any criminal tribunal or court would prosecute incitement to genocide in the absence of a genocide actually having occurred. Consequently, truly effective preventative efforts may best be had in areas such as humanitarian communications intervention, radio jamming, broadcasting of diverse views, as well as forcible measures. That said, the criminal law also aspires to serve retributive, expressive, and didactic goals ex post, and Susan’s reformulation of the law helps provide clarity, consistency, and proportionality in each of these regards.
I couldn’t agree more with Susan’s conclusion. She identifies among the reasons that current law on incitement has “go[ne] astray” that courts “try to understand international crimes simply as large-scale versions of domestic offenses” (p. 528). In my opinion, this is the case not only when it comes to substantive crimes such as incitement, or the role of freedom of expression as a “defense,” but also in a variety of other substantive, procedural, and correctional assumptions that underpin international criminal law generally. Collectivized eliminatonist genocide, as Susan rightly points out, is not the same thing as an isolated deviant hate crime. Extending “freedom of expression” from the rarified confines of a marketplace of ideas in a settled democratic polity to condone incitement in a context of state monopolies over eliminationist rhetoric is ill-fitting.