Atrocity Speech Law Comes of Age

Abstract

This paper dissects, contextualizes and assesses the law developed at the ad hoc tribunals governing the relationship between speech and atrocity. While much ink has been spilt in other contexts dissecting the crime of incitement to genocide, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) went well beyond that offense in developing the jurisprudence. Hate speech as the crime against humanity of persecution, instigation and ordering have also loomed large in the calculus of individual criminal responsibility for rhetoric that foments or fuels mass violence. In that sense, the work of the ad hoc tribunals represents a significant growth phase, when atrocity speech law realized its essential form and came of age, perhaps before achieving its final flowering. Thus, if Nuremberg represented the birth of this legal corpus, then the ad hoc tribunals might be said to represent its adolescence. But while adolescence is a period of growth, it is also a period of awkward transition. And the atrocity speech jurisprudence of the ICTR and the ICTY reflects that. Confronting the International Criminal Court, as well as any other future ad hoc or municipal adjudicators, will be a slew of problems created or left unresolved by the ICTR and ICTY. These include, inter alia, issues of causation in respect of incitement, non-inciting hate speech in reference to persecution, the degree of a speech’s contribution to violence as regards instigation and the prospect of inchoate liability for the offense of ordering. But in deciding these issues, courts in coming years will greatly benefit from the important elemental groundwork and policy insights shared over the span of more than two decades by ICTY/ICTR jurists from around the world. In considering that contribution, as well as some of its problematic aspects, this paper proceeds in four parts. After an Introduction, Section two provides a background into the atrocities perpetrated in the former Yugoslavia during that country’s early 1990s disintegration and in Rwanda during the 1994 genocide against the Tutsis. In addition to exploring the role speech played in sparking and fueling those atrocities, this section examines the establishment of the ICTY and ICTR and provides an overview of the key atrocity speech law cases decided by those courts. Section three then considers the atrocity speech law jurisprudence developed by the ad hoc tribunals. Analysis of this case law is divided according to the key speech offenses, beginning with incitement, and then moving on to persecution, instigation and ordering. Section four then considers the legacy of this jurisprudence – its key contributions as well as some of the thornier issues it has created or questions it has left unresolved. The paper then concludes with some final reflections on needed areas of development in this body of law as well as prospects for future justice.