Armed conflicts and mass atrocities are usually preceded by a propaganda campaign in which politicians and public figures foment ethnic, national, racial or religious hatred, and incite their followers to acts of violence. Since the ancient Greeks, criminal law has held the person inciting the crime as responsible as the material perpetrator and yet historically, the international legal mechanisms available to interdict and punish inciters have been meager.
International tribunals face unique challenges when adjudicating international speech crimes such as direct and public incitement to commit genocide and instigating crimes against humanity. Courts must balance freedom of expression, a right protected by international conventions, with the need to regulate potentially harmful speech. Offences such as instigating persecution and incitement to genocide remain an unsettled area of international law where the evidence required to satisfy the elements is unclear. Recently at the ICC, prosecution cases relying heavily on speech acts to demonstrate a contribution to an alleged criminal plan have collapsed at the pre-trial or trial stage (e.g., Mbarushimana and Ruto/Sang). Even when the prosecution secures convictions, the legal reasoning in the judgments is often roundly criticized by legal scholars (e.g., Nahimana and Bikindi at the ICTR).
With inchoate crimes such as incitement to genocide, the primary task of the court is to determine the intentionality of the speaker, a task that is made more difficult by the fact that propagandists often use coded or euphemistic speech which courts may perceive as symbolic or expressive, rather than as directly advocating a crime. In the case of completed crimes, international courts must ascertain whether there is a causal nexus between the expression and any subsequent offence in complex, overdetermined situations where multiple forces are at work and intervening factors may exist.
In this context of uncertainty, the Peace and Justice Initiative and the University of Connecticut Law School and Human Rights Institute convened a group of ten attorneys and researchers in Hartford, Connecticut, including staff with experience in the Office of the Prosecutor, as Defense Counsel, and in Chambers at the ICTY, ICC and Special Tribunal for Lebanon.
The result is a set of clear and practical guidelines for lawyers and policy-makers as they confront public expression that may be prohibited under international law; the Hartford Guidelines on Speech Crimes in International Criminal Law. These can be freely downloaded here.
The Hartford Guidelines recommend:
- Emphasizing the preventative potential of international criminal law.
- Indicting inchoate crimes where appropriate and treating incitement to genocide as an inchoate crime, not a mode of liability for completed crimes.
- Including hate speech in the actus reus of the crime of persecution charged under article 7 of the Statute of the International Criminal Court when appropriate.
- Amending article 25(3)(e) of the Rome Statute to include a form of liability concerning incitement, as set out below.
- Drawing from social science research to evaluate speech according to a checklist of indicative factors known to elevate the risk of violence against targeted groups.
The Guidelines start with the premise that the preventative capacity of the international justice framework remains unrealized. All prior indictments for incitement to genocide at international tribunals have come after a genocide has already occurred, and yet inchoate crimes are designed to prevent the commission of grave crimes and therefore are most effectively charged in the preliminary stages of a deteriorating political situation.
To enhance the preventative function of the International Criminal Court, the Guidelines recommend amending Article 25(3)(e) of the ICC’s Statute to read:
Intentionally, directly, and publicly incites others to commit any of the crimes in the Statute, thereby significantly increasing the likelihood of their occurrence. For the purpose of this provision it is not necessary that the incited crime(s) be committed or attempted.
At present, article 25(3)(e) of the Rome Statute refers only to direct and public incitement of genocide. The proposed amendment would see a form of criminal liability included in the Rome Statute covering not only those persons who urge others to commit genocide, but also those who call for crimes against humanity and war crimes (and potentially aggression), and it resolves the current anomaly whereby direct and public calls for crimes such as extermination, rape, or torture, for example, are not criminalized per se.
Doctrines of inchoate speech crimes conventionally require that there be a likelihood that the speech act in question cause subsequent lawless action. Our provision requires that the incitement be conducted in a manner so as to “significantly” increase the likelihood of the commission of the crimes. This filter excludes “barstool” criminal advocacy which have no realistic possibility of resulting in grave crimes.
Adjudicating speech crimes in a preventative manner presupposes an assessment that a speech significantly elevates the risk that an international crime will occur. Such predictive reasoning requires a measure of counter-factual and potentially speculative analysis.
To encourage a more rigorous risk framework to determine the likelihood that a speech act could cause an offence, we recommended the use of an analytical framework based on peer-reviewed social science. In evaluating possible speech crimes, context is key and recent historical and behavioral research has identified many of the key contextual factors in mass persuasion. Distilling the social science findings, we provide a checklist of factors that are known to elevate the risk of violence, and these relate to the status of the speaker, the content of his/her message and the context of the speech act.
Social science research has found, for instance, that violence is most likely to result when charismatic speakers in positions of authority explicitly call for immediate violence against targeted groups, in a context where inter-group violence has occurred previously and where the current situation is tense and the speakers’ audience is fearful of being attacked itself.
At a time when nativist and chauvinistic populism is on the rise in Europe, North America, Turkey, The Philippines, Russia and elsewhere, it is more urgent than ever to define the international consensus on free speech and its limits. The Hartford Guidelines on Speech Crimes in International Criminal Law provide an accessible, state-of-the-art statement that is grounded in the statutes and case law of international tribunals, and in dialogue with the contemporary social science of mass persuasion.