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    The Ghost of Causation in International Speech Crime Cases

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    This book chapter describes existing case law on incitement to genocide, the challenges with identifying the cause of genocide, and offers the Dangerous Speech framework as an alternative approach.

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    The Ghost of Causation in International Speech Crime Cases

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    Dangerous Speech Project
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    This book chapter describes existing case law on incitement to genocide, the challenges with identifying the cause of genocide, and offers the Dangerous Speech framework as an alternative approach.

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    This book chapter describes existing case law on incitement to genocide, the challenges with identifying the cause of genocide, and offers the Dangerous Speech framework as an alternative approach.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    1K views8 pages

    The Ghost of Causation in International Speech Crime Cases

    Uploaded by

    Dangerous Speech Project
    This book chapter describes existing case law on incitement to genocide, the challenges with identifying the cause of genocide, and offers the Dangerous Speech framework as an alternative approach.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 8
    Chapter 8 The ghost of causation in international speech crime cases* Susan Benesch Its best-known ling on incitement to gencede, the ICTR deserbe tht crime Asan unequivocal cause of mas killing The tibunal said ofthe defendant Hassan [Ngezs newspaper editor, "He poisoned the minds of his readers, and by words ann! deeds caused the deaths of thousands of imocent people.” Sentencing the radio executive Ferdinand Nahimana to life imprisonment inthe sme case, the ingest bi, “Without afer, machete, or any physical weapon you caused ‘he deaths of thousands of innocent iia "The idea that iftemmaoryspech catalyst fr genocide is widely believed, Tikely correct an of no small importance: i isthe reason why incitement to ‘genocide bacame an internation crm inthe Sst place" and an igpiraion for thistook Butthe impact of spech on goupsis complex, and dificult to measure ‘or prove Inthe famous soiled "Media Ta” case cited above the ICTR welded its own causal link between certain speoch acts and thousand of deaths, since ‘euetion was ot prove, despite testimony from more than 100 witnesses over the eure of tree yea tial No rotcution for neitement to genocide to date ha ed evidence that speech caused thnsands of deat: only evidence thatthe speech was made, juxtaposed ‘with separate evidence of ass violence afterward, or opinions from wimesse win ‘heard or read the speech and surmised that it had nfloened other people to il on {fearsome scale, Yet judges have often made string pronouncements about Causation, suchas the ones cited sbovecuriosly since there was no legal need forthem incitement ogenccde ia crime whether it leads to genocide or not? ‘Neither factually supported nor legally required then, easton sil aunts this young body of case law, In the ICTR's fit incitement to genocide judgment in 1998, agaist Jenn Paul Akayes, the bourgmertre or mayor of the Revandan township of Tabn the Trial Chamber delared that evidence of causation was ‘equited, only to concede the contrary afew pages ltr. The judges asserted that there “mut be proof of possible causal ink (and tvice claimed to have found it), yt alo asserted the opposite, which score: incitement may be punished ‘The thot of austin in international speech crime eter 255. ‘thou prot hat it caused genocide. Explaining that view, the judges wrote elogventy: In the opinion ofthe Chamber, the fact tat such ats ae in themselves particulary dangerous because ofthe high bk they cary fr society, even if they fail to produce resus, warants that they be punished as an exceptional ‘isu. The Chamber holds that genocide clearly falls within the category of eximes so serious that ect and public incitement to commit such eine ‘nist be punished as such, even where such instement led o produce the result expected by the perpetrator Teams be noted, night of any rq, thatthe ICTR was pioncering en alinost centrely new branch of lw. The INT at Nuremberg ted falas teicher and Hans Fritsche onthe bass of thee newspaper wings and broadcast, respec: tively, but speech crimes had not been criminalize inthe Nurembers Chane. Instead, Streicher was convicted for eximes against humanity (he IMT acquit Fritzsche ina judgment barely so pages tone.” Incite to genocide was codified soon aerward in 1948, and Akayesu was theft person to be convicted fo that erime, almost exactly $0 year afc that Incitementis among the five acts peohibited bythe 1948 UN Convention on the Prevention and Punishment ofthe Crime of Genocide (the others are ater compli, conspiracy and genocide ise to fll the tely's purpose of Pre venting genocide, such an “odious scourge"! that special legal measures Were sd inthe view ofthe Convention's authors, To this dy, incitement to geno ‘ie as spcil stats in ietemational ximinal nw since thre sn law against Incitemen to grave crime” sch as war emes or crimes guns amenity Intemational law does prohibi other types of speech and some “lesser” forms finite ment. Insigation is speech dicted at an ndvidalo group sometimes in private, and is ot aerimein self, but form of individual emia respon sibility fr another rime, kin to aiding o abet, under he states of both he ICTY and the ICTR, although nt the ICC Hate speech canbe an international ime ifitconsitues persecution in the context of « widespread and systematic pattem of crimes against humanity. And the Intemational Covenant on Civil and Political Rights requites states to prohibit thre “lesser” forms of incitement ‘netement to hostility, odiscrimination and o violence This chapter focuses om incitement to genocide for sever reasons because it ‘isthe speech eime that has quickly given rset the largest body of ineratonl ‘riminal Iw, because ofthe pressing need to interpret itor clearly (as the Jrisprudentiat confsion over causation demonstrates) and becuse of the unig ‘onportanity tha incitement to genocide represents for genocide prevention. It seems fo be a precursor, ifm aprerequsie, or genocide, ‘The drafters ofthe Genocide Convention working response othe Holocaust and with Naz propaganda indelibly in mind—surmised tht rac, inflammatory speech nd been a necessary condition for genocide. One ofthe delegtes remarked, 256 Propaganda, War Crimes Tris and lateratona Law hc un iy ad been ned dot nnn cer nd Bot Patent nie eyo wth emo Ce re ean omen Eee ee ee re teeta tenes ey ary pci ine nr reheat aaa iene nate fe kecenris ena easter Sey Sapa nal steep meta “ee duiarhety ato cay eee i eet negate Bee ttn rt er man hat ‘semen eae met sie ses cube “een eee ots eatery ee eae ieee ince Me ng ted idee ferret ete ceeehaetaroet hemes Tunes me osetia oer nineties ietinereei ato ce eee erate emai ae CE rr ee pei alee rmaemeutedeecn ee = eee meee rain LS ce cle qaies anh a cn alge on Thintnnh novasiege aie sree se ra sao see ce cr ee mene eee eter senna nian orn oteterater yeast roo a Spar uman eae ‘The ghost of austin in interstonal speech evine cates 257 Why causation haunts the east Causation sips into judicial lings on incitement to genocide for several easons, all of which are signs of systemic difficulties in ntemational emia! ln Fin, there i avoid fill Causation stands in fora tool that courts ae lacking! systematic method for identifying incitment to genocide. That eime, ke tice ‘speech erimes in international lav, has not yt boen clearly defined. ‘Second the des tht speech used thousands of det ives easurace tht the speech in question was not ony a eime but an especially severe one som able othe other acts codified in international criminal law sach at war chimes, ‘rims against humanity and genocide This seems especially important in ght ‘ofthe fundamental, long-established right of feedom of expression. Speech it Afferent from other acs tht ate always or nearly always ciminal and ever ‘consiue ight, such as killing or torture. Ics dificult hand dow the same unishment for speech that would be meted out forking, in other words, unless ‘tsoems clear tht the speech dd effectively il Finally, causation canbe easily (and mistakenly) infeed from crcumstantl evidence. Forinstans, i Tuts businessman's ane was read over the neorous RTLM airwaves and the man was later killed during the genocide, one might ‘assume tht the fis event caused the second one, asthe ICTR repeatedly Sd inthe "Media Tri” jdemem—even where thee wa e dele of months or oars between the naming andthe killing, and even without any evidence tat tellers "Net aware ofthe broadcast.” As the ICTR. Appeals Chamber pointe out in ts

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