- Atrocity Speech Law: Foundation, Fragmentation, Fruition by Gregory S. Gordon
Starting from post-1945 war crimes trials, prosecutors have attempted to inhibit the repetition of similar offenses. Various news sources, speeches, and radio broadcasts incited Hitler's followers to acts of violence that were subsequently successfully prosecuted. Fifty years later, prosecutors confronted the Rwandan Genocide. After that catastrophe, defendants associated with various news sources, speeches, and radio broadcasts that had incited violence against Tutsis, moderate Hutus, Belgians, and others, now faced charges of war crimes, genocide, and crimes against humanity, thanks to domestic legislation that Rwanda adopted in 1996. Gordon demonstrates how the prosecution at the ICTR (International Court Tribunal for Rwanda) cited instances in which vitriolic propaganda had preceded violence, but did so as part of cases in which defendants were charged with an array of allegations, suggesting that the prosecution remained uncertain which accusations could ultimately result in convictions. The Rwandan Media Case reflected such issues.1
As a central theme of the Media Case, hate speech represents the expression and exacerbation of conditions conducive to violence, signaling a willingness to incite or instigate actual human rights abuses. Broadly defined, "atrocity speech law" has criminalized incitement by individuals in positions of authority, the kind of words that have historically evaded effective prosecution. An integral if not always explicit feature of international law, Gordon's "atrocity speech law" aspires to account for Cesare Beccaria's reservations about the classification of words as criminal acts in diverse contexts whose "nature varies so greatly according to the times and places that the detail [needed to craft the law] would be both vast and wearisome."2 Existing jurisprudence, according to Gordon, has generated an "unshapely and disjointed" penal tradition lacking "any systematic or coherent" content. Nevertheless, historical models, including the Armenian Genocide and the Holocaust, suggest that the creators of state propaganda play a central role in incitement (pp. 3–9, 31—41).
As Gordon shows, the Rwandan Penal Code's Article 91 permitted prosecutors to preclude ex post facto challenges (p. 138). Prosecutors strategically compared elements of the Rwandan genocide with aspects of the Holocaust. Since Gordon integrates extensive extracts from the Rwandan judicial proceedings, separating his analysis from that of the court is occasionally difficult. Court reporter documents, stenographic records, indictments, and judgments manifest the breadth of the legal process. Scholars and judges accepted the prosecutors' "parallels between [Rwanda criminals'] genocidal media campaign and that of the Nazis against the Jews" (p. 50).
Guilty verdicts, however, required evidence closely linking actual abuses to defendants' specific words. Hutu extremist propaganda magazine Kangura demanded quick and deadly action.3 Radio Télévision Libre des Milles saturated the airwaves with false and misleading information. In his radio broadcasts, Georges Ruggiu incited the ruling party's paramilitary Interahamwe to "complete the 1959 revolution" (p. 55). In the aftermath, such activities became prosecutable war crimes. A closer look at Prosecutor v. Akayesu (1998) placed the defendant in an earlier position of authority as the local mayor and member of the ruling party. His public speech of April 19, 1994 "in light of its cultural and linguistic content" enabled the court's guilty verdict for "the crime of direct and public incitement to commit genocide" (pp. 137—40). Contrasted with the more skeptical conclusion in Prosecutor v. Nahimana, however, according to the Akayesu case propaganda media could "exacerbate" existing tensions. In the latter case, the court also considered Jersild v. Denmark (1994), Zana v. Turkey (1997), Incal v. Turkey (1998), and Sürek and Őzdemir v. Turkey (1999), suggesting that it felt uneasy about the evidence in light of existing jurisprudence. [End Page 135] Although each case's sui generis character inhibited its potential as precedent, taken collectively they clearly helped the court formulate an opinion. In the Media Case, according to Gordon, "the words themselves assaulted the victim [and are] indissolubly connected to a massive or well-planned attack on civilians." The court focused on the intent which appeared to have "as its aim the death and removal of...