Atrocity Speech Law: Addressing Hate that Does Grave Harm

I. INTRODUCTION

Gregory Gordon's book, Atrocity Speech Law, is a groundbreaking work that has arrived when it is urgently needed, in the midst of rising hateful rhetoric.¹ Meticulously researched and thoughtfully written, the book exposes maddening gaps in international law regarding dangerous speech. It then proposes a bold remedy: an innovative, holistic framework that streamlines, coordinates, and expands the existing laws. Against the current backdrop of hostility—with its angry assertions of racial and national supremacy, terrorist recruitment videos, shouts of rage at refugees, and dizzying shift in the tone of political discourse—this book is a crucial response to speech that can trigger atrocity. In it, Gordon lays out the legal boundaries needed for effective deterrence, and he modestly urges other scholars to build on his framework. This essay takes up his invitation.

Gordon writes from his frustration as a prosecutor with the International Criminal Tribunal for Rwanda, the African nation where alarming media messages stirred thousands of ordinary people to take up machetes and slaughter their neighbors, some 800,000 innocent people, while the world stood by as though powerless.² More than twenty years later, Gordon shows that international law still lacks the clarity and strength to deter such incendiary speech. Gaps in the "unshapely and disjointed"³ laws leave areas of impunity. Even where the law sets out crimes, the definitions and elements of the offenses may be too fragmented to alert would-be inciters, persecutors, and instigators to their own criminal liability. These inconsistent laws also threaten free expression because they fail to stake out protected areas for legitimate protest. Some international court decisions have even emboldened dictators to crack down on dissent, perversely turning international law into a weapon against their own vulnerable citizens.⁴

To fix these defects, Gordon first establishes a new, unifying conceptual category, "atrocity speech law."⁵ This term brilliantly captures the essence of the challenge. He identifies four speech crimes from different areas of international law: inciting others to commit genocide, instigating an international crime, ordering a military—or even non-military—subordinate to commit an international crime, and persecuting members of a group on discriminatory grounds.⁶ Gordon rethinks the relationships among these offenses and draws a new, comprehensive architecture, a "Unified Liability Theory," culminating in a proposed treaty and a draft revision to the Rome Statute of the International Criminal Court.

This essay takes a next step, making suggestions and posing questions aimed at applying the deep and bitter lessons from the past century to the mounting challenges of the new one. Part II briefly describes some of the international law troubles that Gordon documents in detail. Part III sketches Gordon's Unified Liability Theory in order to highlight several of its important contributions. Part IV considers today's fast-changing technology and political rhetoric. It urges adopting Gordon's well-founded work and extending his rigorous method of analysis.

II. GAPS AND CONTRADICTIONS IN ATROCITY SPEECH LAW

In his first chapter, Gordon tells the story of a German mother in 1943 who comes upon a ragtag group of terrified Jewish children and brings them home to feed, comfort—and shoot in the head one by one.⁷ She later explained, "As was told to me, I had to destroy the Jews."⁸ The incident illustrates the bewildering horror of Gordon's subject: the capacity of speech—"as was told to me"—to excite monstrous acts.

How can international law be confused about speech that leads to grave crimes—even genocide, "the crime of crimes"?⁹ In Atrocity Speech Law, Gordon shows how, tragically, the very enormity of the wrong is at the heart of the legal defects. In the ashes of World War II, Allied nations realized that the Holocaust had outstripped the criminal laws that then existed. Although a new word, genocide, was spoken during oral arguments in the International Military Tribunal at Nuremberg, the crime was not yet on the books.¹⁰ Gordon traces the way diverse...