Hate speech and persecution: a contextual approach.

• Author: Gordon, Gregory S.
• Position: I. Introduction through II. Crimes Against Humanity (CAH

ABSTRACT

Scholarly work on atrocity-speech law has focused almost exclusively on incitement to genocide. But case law has established liability for a different speech offense: persecution as a crime against humanity (CAH). The lack of scholarship regarding this crime is puzzling given a split between the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia on the issue of whether hate speech alone can serve as an actus reus for CAH-persecution. This Article fills the gap in the literature by analyzing the split between the two tribunals and concluding that hate speech alone may be the basis for CAH-persecution charges. First, this is consistent with precedent going as far back as the Nuremberg trials. Second, it takes into account the CAH requirement that the speech be uttered as part of a widespread or systematic attack against a civilian population. Third, the defendant must be aware that his speech is uttered as part of that attack. As a result, it is problematic to consider "hate speech" in a vacuum. Unlike incitement to genocide, an inchoate crime not necessarily involving speech and simultaneous mass violence, hate speech as persecution must be legally linked to contemporaneous violence in a context in which the marketplace of ideas is shut down and speech thus loses its democracy and self-actualization benefits. Thus, it should ordinarily satisfy the CAH-persecution actus reus requirement. Nevertheless, given the strictly verbal conduct, and possible impingements on quasi-legitimate freedom of expression, isolated or sporadic hate speech, as well as hate speech uttered as part of incipient, low-level, or geographically removed chapeau violence, may not qualify as the actus reus of CAH-persecution. The Article ultimately makes the point that context is crucial and case-by-case analysis should always be required.

TABLE OF CONTENTS I. INTRODUCTION II. CRIMES AGAINST HUMANITY (CAH)-PERSECUTION AND SPEECH: ORIGINS AND DEVELOPMENT A. Origins and Formulation of CAH B. The Development of Persecution as a CAH C. CAH-persecution and Speech 1. The Judgments at Nuremberg 2. The ICTR Trial Chambers Judgments a. The Ruggiu Case b. The Media Case 3. The ICTY Trial Chamber Judgment in Kordic 4. Mugesera v. Canada 5. The Appeals Chamber Judgment in the Media Case III. RECONCILING THE SPLIT IN TREATING SPEECH AND PERSECUTION A. Unresolved Issues B. The Spectrum of Speech at Issue C. Hate Speech as an Actus Reus for Persecution as a CAH 1. The CAH Chapeau 2. The Elements of Persecution 3. The Jurisprudence and Commentary on Speech and Persecution IV. LIMITS ON SPEECH AS THE BASIS FOR CAH (PERSECUTION)? A. Possible Limitations Related to the Chapeau Elements of CAH B. Possible Limitations Related to Speech C. Possible Scenarios V. CONCLUSION But the character of every act depends upon the circumstances in which it is done.

--U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. (1)

1. INTRODUCTION

   Most scholarly work on atrocity-speech law has focused almost exclusively on the crime of direct and public incitement to commit genocide. (2) But jurisprudence in this area has established liability for another offense resulting from inflammatory hate speech linked to mass violence: persecution as a crime against humanity (CAH). (3) The lack of scholarship regarding this offense is somewhat perplexing, given that, in recent years, the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY) have taken different approaches to the issue of whether speech can serve as an actus reus for persecution as a CAH (CAH-persecution). In the 2000 Prosecutor v. Ruggiu (4) and the 2003 Prosecutor v. Nahimana (5) (Media Case) judgments, for example, separate ICTR Trial Chambers found that hate-speech radio broadcastsnot necessarily calling for action blatantly deprived the target ethnic group of fundamental rights and thus, even without proof of causally related violence, could be the basis for charging persecution as a CAH. In the 2001 Prosecutor v. Kordic case, on the other hand, an ICTY Trial Chamber found that the hate speech alleged in the indictment did not constitute persecution because it did not directly call for violence and thus failed to rise to the same level of gravity as the other enumerated CAH acts (such as murder and rape). (6) Then, in the Media Case appeals judgment, the majority found that pure hate speech, if accompanied by separate calls for violence or actual violence, could give rise to CAH-persecution liability, but declined to rule on whether nonadvocacy hate speech, standing alone, is of a level of gravity equivalent to that of the other enumerated CAH crimes. (7)

   This Article fills the gap in the literature by analyzing the split between the ICTR and ICTY and grappling with the issue the Media Case Appeals Chamber declined to address. It concludes that hate speech not directly calling for action may qualify as persecution. In the first place, this is consistent with the logic and precedent of prior cases going as far back as the Nuremberg trials. (8) Second, it is impossible to ignore the legal context necessary to charge CAH in the first place. Such a charge presumes, per the crime's "chapeau" (i.e., threshold preconditions), that the speech is uttered as part of a widespread or systematic attack against a civilian population. (9) The chapeau further requires that the defendant be aware that his speech is uttered as part of that attack. (10) And the International Criminal Court's (ICC's) Rome Statute, which will be a significant point of reference going forward, specifically requires that persecution be tied to one of the other enumerated CAH offenses or another crime within the statute, such as genocide or war crimes. (11)

   As a result, it is problematic to consider "hate speech" in a vacuum. Unlike incitement to genocide (an inchoate crime), which, as a legal matter, is not necessarily uttered in the context of simultaneous mass violence, (12) hate speech as persecution must be legally tied to contemporaneous, large-scale violence or inhumane treatment (based on the required "attack"). Moreover, hate speech is not a monolithic concept. This Article examines the entire range of animosity-focused expression and, for the first time in the literature, posits that there are three discrete categories along the spectrum: (1) "general hate speech," which dehumanizes the victim group but is not necessarily directed at any audience in particular; (2) "harassment," which is spoken directly to members of the victim group; and (3) "incitement," which is directed toward third parties and encourages them to take action (whether violent or nonviolent) against members of the victim group. (13)

   In the end, given the realities of mass atrocity, the question of whether hate speech not directly calling for violence, on its own, rises to the same level of the other enumerated CAH offenses is strictly academic; as explained, hate speech will necessarily be accompanied by other widespread or systematic inhumane treatment in the CAH context. Such coordinated and large-scale attacks on civilian populations have been empirically perpetrated by states or state-like organizations that monopolize channels of communication. (14) In that context, free-expression concerns abate or disappear as the metaphorical "marketplace of ideas" ceases to function and speech is shorn of its democracy and self-actualization benefits. (15) Thus, even if stringent U.S. First Amendment concerns are factored into the calculus, hate speech tethered to a widespread or systematic attack ought to satisfy the CAH actus reus requirement.

   Nevertheless, given the defendant's strictly verbal conduct, as well as the fact that impingement on quasi-legitimate freedom of expression may be implicated, isolated or sporadic hate speech, as well as hate speech uttered as part of low-level or geographically removed chapeau violence, may not qualify as the actus reus of hate speech as a CAH. In those circumstances, context is crucial and case-by-case analysis must follow.

   This Article proceeds in four parts. Part II considers the origins of CAH-persecution and its early nexus with hate speech through prosecutions at the Nuremberg tribunals, and then its subsequent development at the ad hoc tribunals. It then examines the divergent approaches taken by the ICTY and ICTR with respect to hate speech and CAH. Finally, it analyzes the Appeals Chamber judgment in the Media Case, which, on certain levels, failed to reconcile the split between the ICTR and ICTY. Part III explains why, given the normative underpinnings of CAH-persecution, as well as its technical legal requirements, this split should be resolved in favor of hate speech fulfilling the CAH-persecution actus reus requirement. Finally, Part IV demonstrates that, given the high value of speech in terms of democratic governance and individual actualization, as well as potential circumstances where the relationship between speech and persecution is attenuated, not all hate speech may qualify as the actus reus for CAH-persecution.

2. CRIMES AGAINST HUMANITY (CAH)-PERSECUTION AND SPEECH: ORIGINS AND DEVELOPMENT

   1. Origins and Formulation of CAH

      The offense of CAH traces its origins to an Allied warning to the Turkish government regarding its massacre of the Armenian population during World War I. On May 28, 1915, France, Great Britain, and Russia issued a joint declaration to Ottoman authorities noting that "[i]n view of these crimes of Turkey against humanity and civilization," the Allies would "hold personally responsible [for] these crimes all members of the Ottoman government and those of their agents who are implicated in such massacres." (16) The Allies failed to redeem that pledge. Although a postconflict war crimes commission recommended creation of an international tribunal to prosecute...