I was moved to post this after reading the Just Security article I earlier shared, “Hijab Bans, Hindutva, and the Burden of Hindsight: Why Global Leaders Must Act to Prevent Genocide in India.”
“Incitement has been a precursor to, and a catalyst for, modern genocides. It may even be a sine qua non, according to witnesses and the abundant historical and sociological literature on the topic.” — Susan Benesch
In the study of genocide, especially among practitioners and theorists of international criminal law, the notion of “incitement to genocide” (which must be distinguished from ‘hate speech’ as that is now legally and politically defined: such speech has been criminalized in domestic law but not international law) has become a plausible or credible idea, even if it is sometimes referred to or invoked too casually or loosely (as when Mahmoud Ahmadinejad, then President of the Islamic Republic of Iran, was accused of incitement to genocide based on remarks he made about Israel).
In what follows I have drawn primarily upon two sources: an article by Susan Benesch: “Vile Crime or Inalienable Right: Defining Incitement to Genocide,” Virginia Journal of International Law (2008), Vol. 48: 3, 485-528, as well as some of my notes from a chapter in Larry May’s book, Genocide: A Normative Account (Cambridge University Press, 2010).
The principal elements of incitement to genocide:
- specific intent (mens rea) [As Larry May notes, while intention and motive are often seen as synonyms, strictly speaking, intention is “what is aimed at,” while motive is “the reason or desire for acting.” Furthermore, intentions are “final causes,” while motives are “merely efficient causes.” May thus argues that criminal law should concern itself primarily with intentions in determining the mental elements of crimes (guilt), while motive become relevant with regard to “mitigating or aggravating conditions.” In short, “what makes a mind guilty is that it aims to break the law, not that it is moved by malice, patriotism, or some other motive.”]
- direct and public incitement [Larry May has a rather more complicated analysis of this picture]
- committed by certain people (those with some measure of public power, authority, influence…typically involving, directly or not, state actors) in certain circumstances or under specific conditions (this may involve an ongoing conflict that has not proven amenable to democratic reconciliation or resolution between, say, ethnic or religious groups).* This is what Susan Benesch has described as a “reasonable possible consequences test,” in other words, such speech must be considered to have a reasonable possibility of leading to genocide.
Professor Benesch proffers the following six-prong inquiry by way of distinguishing the crime of incitement to genocide from hate speech:
- Was the speech understood by the audience as a call to genocide? Did it use language, explicit or coded, to justify and promote violence?
- Did the speaker have authority or influence over the audience and did the audience have the capacity to commit genocide?
- Had the victims-to-be already suffered an outbreak of recent violence?
- Were contrasting views still available at the time of the speech? Was it still safe to express them publicly?
- Did the speaker describe the victims-to-be as subhuman, or accuse them of plotting genocide? Had the audience been conditioned by the use of these techniques in other, previous speech?
- Had the audience received similar messages before the speech?
* In the words of Benesch, “To commit incitement to genocide, a speaker must have authority or influence over the audience, and the audience must already be primed, or conditioned, to respond to the speaker’s words. Incitement to genocide is an inchoate crime, so it need not be successful to have been committed, but it would be absurd to consider a speech incitement to genocide when there is no reasonable chance that it will succeed in actually inciting genocide. And to prosecute a case like this would be a needless (and possibly harmful) restriction of the right to free speech.”
The following snippets are from my notes to Chapters 10 and 11, “Incitement of Genocide and the Rwanda Media Case,” and “Instigating, Planning, and Intending Genocide in Rwanda,” in Larry May’s Genocide: A Normative Account (Cambridge University Press, 2010): 180-220. At a later date I hope to compose these into proper sentences and paragraphs!
- incitement “[is] an often overlooked basis of individual criminal liability”
- “Incitement derives from the Latin word citare, which means to act in rapid motion.”
- The Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR): “the ICTR urges that we think of it as it has been conceptualized in Common Law systems, namely, as ‘as encouraging or persuading another to commit an offence’ and not merely by ‘vague or indirect suggestion.’ Incitement is thus associated with provoking, which involves both causation and intent, namely, ‘the intent to directly prompt or provoke another to commit genocide.’”
- “The use of a loudspeaker directly to incite is surely one of the clearest examples of incitement ….”
- “The Trial Chamber assigns individual criminal responsibility for this incitement to genocide on the basis of what it calls ‘superior responsibility’ of the defendants for failing to act to prevent the genocidal harm that they should have predicted would result from their publications, broadcasts, and speeches.”
- in most civil law systems, incitement is most often treated as a form of complicity
- “As in most matters of criminal law, the hardest element to establish for the crime of incitement to genocide is mens rea.” …. “the desire to create in others a desire to commit a crime” “And because of this odd type of mens rea, the crime of incitement to genocide is especially hard to prove, because in effect we must peer into the mind of two different people, or infer from their behavior what the mental states for two different people are. [I think the difficulty of doing this is sometimes exaggerated, especially among philosophers with differing views on questions central to ‘philosophy of mind’ and psychology, as they are often not well versed in the latter, especially if it is not behaviorist, positivist, or experimentalist.]
- As Larry May notes, in this instance we must, so to speak, “peer into the mind of two different people, or [more precisely] infer from their behavior what the mental states for [at minimum] two different people are.”
- causation element can be difficult to prove …. “direct causation” … causation element sometimes weakened, thereby diminishing its importance and placing emphasis on the inchoate nature of the crime
- “Antony Duff lists incitement as one of the three forms of inchoate crime that he calls ‘offenses of intention,’ which ‘involve an intention to commit (or secure the commission of) a substantive offense, or to cause some primary harm, but need not involve the actual commission of that offense or the actual occurrence of that harm.’ He contrasts incitement and other ‘offenses of intention’ with ‘offenses of explicit endangerment,’ which do not involve intention to harm, but merely negligence or recklessness. This way of understanding incitement make the causal element quite closely related to the intent element. My sense is that incitement may fall between these two categories of inchoate crime, not so closely linked to causation, but still linked in some fashion nonetheless, and also involving explicit endangerment.”
- lack of intention to cause violence but actions that “could reasonably be said to risk such an outcome.”
- when not directly responsible, notion of “superior responsibility”
- “But the question is at what point incitement, as an inchoate crime, blends into instigation, as a full participation in the crime.” … the question of spatial and/or temporal gap
- “incitement to genocide plays such a crucial role in setting the stage for genocide that punishing it is absolutely crucial to the deterrence of genocide.”
- “The only thing that is in the control of the defendant is initiating the causal chain, not of the luck of the chain ending in harm. And because retribution is mainly about responding to what agents voluntarily do, it makes sense to punish on that basis, that is, to punish on the basis of what the defendant deserves based on his or her own choices.”
- “A the very least, on both deterrence and retributive grounds, the inchoate crime should be punished severely only when there was a high likelihood that harm might result from the act of incitement.” The question of the degree of probability (of causing harm or violence)
- “The inciters, unlike the direct perpetrators, merely risk great harm, and this fact should make at least some difference in terms of severity of punishment.”
- “One intriguing way that the Media Case Trial Chamber tries to finesse the individual responsibility of those accused of incitement to genocide is by reference to superior responsibility, that is, by reference to the idea that those media executives accused of incitement can be convicted based on how their subordinates excited readers and listeners to commit acts of genocide.”
- “superior responsibility” here extended to nonmilitary settings, for example, political party members; members of a corporation; members of an army; members of a church…. degree of control
- “Here is how LaFave and Scott describe one basis of what has been called ‘superior responsibility’ in criminal law: ‘The Model Penal Code provision is generally consistent with those cases adopting the so-called ‘superior agent’ rule. Under this rule, corporate criminal liability (except for strict liability offenses) is limited to situations in which the criminal conduct is performed or participated in by corporate agents sufficiently high in the hierarchy to make it reasonable to assume that their acts reflect the policy of the corporate body.’”
- “the tort idea of respondeat superior, namely, the idea that a master is responsible for his servant” Cf. leader of a political party
- superior responsibility problematic for the leader of a party but makes sense “in the case of the radio station directors and their employees, as well as the similar relationship for a newspaper’s directors and their employees”
- “incitement makes the most conceptual sense … where a person’s actions begin a causal chain, and soon thereafter there is, or would normally be, a certain harmful result.”
- not merely “preparing the ground for harm”
- intentionally taking a risk: “And here is where the inchoate nature of the crime arises, for if one were to start such causal chain by one’s words, spoken or written, and to intend that these words would have a certain result, then this is enough for incitement, as long as the so-called proximity condition is met, namely, the condition that stipulates that the act must involve causation that is more than mere preparation.”
- “incitement is significantly different from other inchoate crimes in that there is a more direct link between what the defendant is alleged to have done and the result that is harmful.”
- May also thinks “that incitement falls between the stools of some inchoate crimes such as attempts that involve intentional acts to do harm, and other inchoate crime that merely involve recklessness.” hence “only one intention element”
- “Incitement involves the intention to take certain actions that initiate a causal chain that is known to risk serious harm, but where the harm need not be intended, and in addition the harm need not be effected. Incitement is thus an inchoate crime in that harm need not result from the inciters’ action, but incitement is not like most other inchoate crimes in how the proximity test is to be met. …[T]he inciter must in fact do those things that, by strongly affecting others, risks causing these other to engage in harms. But this is not best thought of in terms of preparation [as in inchoate crimes in general] because it is not as if the inciter need be planning to do the things that those who are likely to be affected by his or her actions may cause, nor that he or she intends there to be a plan to produce those harms.”
- question of “whether the specific harm is intended or merely the result of recklessness or negligence” mens rea question
- May supports “the [longstanding] idea that people can be held criminally liable for incitement, even those cases where violence does not follow from their actions and even if the violence is not intended.”
- Just as incitement “can be one of the inchoate crimes that is part of the general crime of genocide,” so too can it be one of the inchoate crimes that is part of the general crime of terrorism, be it domestic or foreign.
- “[s]ome kinds of incitement look very much like a kind of direct instigation”
- “Intentional rather than reckless incitement is the creation of a situation where others are sufficiently inflamed to be ready to cause harm.”
- “There are two kinds of instigation, direct and indirect. The classic cases of direct instigation involve those who plan a large-scale campaign of violence and then start the implementation of the campaign but do not themselves carry out violence. Without the plan, the individual acts that constituted the group crime would not have occurred, or would not have occurred in a concerted way that led to, or at least could have led to, the collective crime. What is not often noted is that the setting up of a plan, without any action aimed at implementation of the plan, does not count as indirect instigation.”
- “Initiation does not require advanced central planning, but there must be something that replaces the planning aspect if criminal culpability is to follow from initiation. I have proposed one such condition, namely, the exploitation of an already existing volatile situation. One cannot initiate without something like the stage already being set.”
- “Intentional rather than reckless incitement is the creation of a situation where others are sufficiently inflamed to be ready to cause harm. Similarly, initiation through exploitation of a given situation is the striking of the spark that actually ignites the flames. … [I]ntentional incitement seems to be the creation of a situation where others are sufficiently inflamed to be ready to cause harm. Instigation and incitement are clearly different from each other, and can meaningfully be charged as separate crimes. And because incitement is more like planning than indirect instigation here, incitement can be the more important action in the crime.” [emphasis added]
Relevant Bibliographies
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