Incitement, Hate Speech, and the Preventive Function of the International Criminal Court

Beyond The Hague welcomes the Peace and Justice Initiative and the University of Connecticut’s Human Rights Institute for this guest post, which proposes an amendment to the ICC’s Rome Statute to broaden the ambit of article 25(3)(e) to criminalize not only the incitement of genocide, but also crimes against humanity, war crimes and (potentially) the crime of aggression. 

In the lead-up to the annual meeting of the States Parties to the International Criminal Court in December 2017, it is imperative for states, NGOs and other interested parties to pay close attention to efforts to reinforce the Court’s preventive function by addressing incitement and hate speech. The criminalization of speech acts has become a major issue in recent times. With the rise of populism in the United States and the United Kingdom, questions have arisen as to the boundaries between lawful and unlawful speech. Some domestic authorities have undertaken to severely repress speech acts; which will inevitably result in litigation over the parameters of the right to freedom of expression.

The international courts are no strangers to these issues, having dealt with several cases concerning allegations of speech acts contributing to atrocity crimes. Given its potential global jurisdiction, the international criminal court can play a leading role in regulating hateful and inciting speech. Focussing on verbal acts before they escalate to physical violence will directly enhance the Court’s preventive function. Accordingly, the following proposal seeks to address the most serious forms of unlawful speech.

The Peace and Justice Initiative and the University of Connecticut Human Rights Institute have formulated an amendment of article 25(3)(e) of the Rome Statute, to read as follows:

Intentionally, directly, and publicly incites others to commit any of the crimes in the Statute, thereby substantially increasing the likelihood of their occurrence. For the purpose of this provision it is not necessary that the incited crime(s) be committed or attempted.

At present, article 25(3)(e) of the Rome Statute refers only to direct and public incitement of genocide. The proposed amendment would see a form of liability entered into the Rome Statute covering not only those persons who urge others to commit genocide, but also those who call for crimes against humanity, war crimes and (potentially) the crime of aggression.  It would remove the current anomaly whereby direct and public calls for crimes such as extermination, rape, or torture, for example, are not criminalized per se.

The proposed amendment would redress the current ambiguity in the formulation of direct and public incitement to genocide in the Rome Statute, which has created confusion as to whether it is an inchoate crime (as considered at the ad hoc Tribunals), or a mode of liability requiring genocide to actually occur, as indicated by its placement in article 25 and lack of wording to the contrary.

Importantly, the proposed amendment confirms the inchoate nature of this form of liability. This would strengthen the Court’s preventive function, as the direct and public incitement could be prosecuted without having to wait for the execution of the atrocity crime to commence. That contrasts with the Court’s more restricted jurisdiction over soliciting and inducing crimes under article 25(3)(b), for example, which require that the crime either occurs or is attempted (the latter meaning that the perpetrator commenced the execution of the crime, but was thwarted because of circumstances independent of the perpetrator’s intentions). Where direct and public calls are being made for atrocity crimes to occur, the international community should not have to wait, like an ambulance at the bottom of the cliff, for the violence to manifest before measures can be taken against those urging the crimes.

The proposed amendment makes it necessary to show that the incitement substantially increased the likelihood of genocide occurring. This filter is designed to exclude less serious speech acts, such as fanciful calls for crimes, or statements by persons with no real possibility of prompting anyone to commit grave crimes. As a formulation, “substantial likelihood” is well-known to international lawyers, thus benefitting from the guidance of settled case-law. For the avoidance of doubt, the proposed amendment explicitly states that the incitement must be done intentionally.

Several legal sources provide support for the direct and public incitement of atrocity crimes, including the ICCPR, article 20(1) (“Any propaganda for war shall be prohibited by law”) and (2) (“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”); the CERD, article 4 (“States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.”); and the Genocide Convention, articles 3(c) (“The following acts shall be punishable (c) direct and public incitement to commit genocide”) and 5 (“The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.”).

At a time when grave violence is prevalent, and the fires of discriminatory hatred are easily stoked, it is important to enhance the preventive function of international criminal law. Enacting the proposal set out above would be a measured but firm step towards realizing this potential.

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Complementarity in the Cote d’Ivoire – Guest Post by Traoré Drissa

Editor’s Note: Beyond The Hague is delighted to publish this review (in French) of the International Center for Transitional Justice (ICTJ) Handbook on Complementarity by Traoré Drissa, a human rights lawyer in the Cote d’Ivoire who assesses the complementarity issues at play in his home country, and how the handbook can assist national structures. An English version is available here.

Note de la rédaction: Beyond The Hague est heureux de publier cette revue du Guide de la complémentarité préparer par le Centre international pour la justice transitionnelle (ICTJ). L’auteur est Traoré Drissa, avocat des droits de l’homme en Côte d’Ivoire, qui évalue les questions de complémentarité dans son pays, et comment le Guide peut aider les structures nationales.


Par Traoré Drissa, Avocat au Barreau d’Abidjan, Vice-Président de la Fédération Internationale des Ligues des Droits de l’Homme (FIDH)

Le renforcement des systèmes judiciaires nationaux constitue le gage de l’efficacité de la lutte contre l’impunité et de la prévention des crimes les plus graves. Cependant en raison de la défaillance des juridictions nationales, lors de conflits armés de grande ampleur, les Etas ont décidé de la création de la Cour Pénale Internationale (CPI).

Simone GbagboSimone Gbagbo at opening hearing of trial for crimes against humanity (photo: AFP)

L’ouvrage préparé et publié par le Centre International pour la Justice Transitionnelle (ICTJ) intitulé « Guide de la complémentarité » permet aux professionnels et aux moins avertis de pouvoir comprendre le fonctionnement de la CPI et surtout sa relation avec les juridictions nationales, dans le cadre cette lutte contre l’impunité.

Il permettra de faire tomber certaines barrières notamment l’accusation portée contre la CPI par une certaine opinion africaine qui la taxe d’être un instrument « néocolonial » ou de domination des peuples africains par l’occident. Le lecteur comprendra aisément que la CPI, organe international de lutte contre l’impunité ne peut trouver de compétence qu’en raison de la défaillance des juridictions nationales. En d’autres termes si les juridictions nationales font leur travail, la CPI ne pourra pas intervenir.

Expérimentation de Modes de Justice internationale : des tribunaux ad hoc à la CPI

L’on doit retenir que les situations de conflits internationaux et même de confits internes ou aujourd’hui asymétriques (terrorismes…) ont donné lieu à l’expérimentation de diverses méthodes de justice. Les Tribunaux ad ’hoc et spéciaux ont été mis en place. L’on est passé des  Tribunaux de NUREMBERG et de TOKYO après la deuxième guerre mondiale au Tribunal Pénal International (TPI) pour le RWANDA et celui pour l’ex-YOUGOSLAVIE ainsi que le Tribunal Spécial pour la Sierra-Léone et récemment les Chambres africaines extraordinaires  instituées par l’Union Africaine auprès de la Justice Sénégalaise pour juger l’ancien Président Tchadien Hissène Habré.

La particularité de ces juridictions ad ‘hoc était de connaitre d’infractions graves commises avant leur institution. Elles avaient une primauté sur les juridictions nationales pour les faits dont elles étaient saisies c’est–à-dire si une juridiction nationale se trouvait saisie simultanément avec l’une de ces juridictions ad ‘hoc selon leur sphère de compétence, la juridiction nationale devait se dessaisir à leur profit.

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Rearming CAR’s forces in a transitional justice framework

(This post has been modified from a previous article published by the International Peace Institute’s Global Observatory)

As international forces scrambled to provide security for the visit of Pope Francis to the Central African Republic (CAR) and recent, largely-peaceful elections, local and international actors have called for the rearmament of the country’s armed forces following the re-emergence of sectarian violence. However, such a move is fraught with danger, including threats by certain ex-Séléka factions to invade the capital Bangui should it occur.

CAR

CAR’s national armed forces (FACA) in Bangui, photo credit: AFP

CAR’s recent wave of sectarian violence followed a civil war that erupted in December 2012, when the Muslim-led Séléka alliance headed by Michel Djotodia took up arms and toppled President Francois Bozize’s regime with help from Chadian and Sudanese mercenaries. Ensuing clashes between Séléka fighters and the mainly-Christian “anti-balaka” militias were estimated to have killed over 3,000 people before a ceasefire was signed in July 2014.

Following many months of relative calm, Bangui witnessed a renewal of intense fighting in late September this year. The apparent trigger was the stabbing death of a Muslim taxi driver, with residents of the capital’s PK5 neighborhood taking to the streets. Since then, at least 90 people have been killed and 40,000 displaced, according to United Nations estimates.Cameroonian and Burundian peacekeepers with the UN’s mission in CAR (MINUSCA) were among the dead. National political leaders have also been abducted and the myriad, well-armed militia groups continue to threaten the country’s transition after years of civil conflict.

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Could the DRC Be Africa’s Next Third Term Battleground?

By Alex Fielding, @alexpfielding

[This article is cross-posted from the International Peace Institute’s Global Observatory]

After months of relative calm, the Democratic Republic of the Congo (DRC) has witnessed renewed anti-government protests, prompting the United Nations to warn that the country is again at risk of descending into political violence. The unrest has been prompted by uncertainty over the national electoral process. President Joseph Kabila will reach the end of his second term in 2016 and is constitutionally obligated to step down ahead of polls scheduled for November that year. But the former taxi driver, who was elevated to the presidency after his father’s assassination in 2001, has shown every intention of attempting to stay in power.

Anti-Kabila protesters in Kinshasa, photo: VOA News

Anti-Kabila protesters in Kinshasa, photo: VOA News

Opposition to “third termism” has been spreading in Africa. It began with the October 2014 popular uprising in Burkina Faso, which ousted President Blaise Compaore following his attempts to remove the two-term limit added to the constitution in 2000, and extend his 27 years in office. Burundi was next, with President Pierre Nkurunziza’s announcement that he would run for a third term triggering months of opposition protests and violent clashes this year. Unlike Burkina Faso, Burundi’s embattled president survived, winning controversial reelection in July amidst opposition boycott. Since then, political violence and the targeted killing of opposition activists has continued, with at least 134 reported dead since April 25.

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Recent attacks show that Boko Haram remains far from broken, and is drawing closer to ISIS

By Alex Fielding, @alexpfielding

This article is cross-posted from the National Post. A “preliminary investigation” by the ICC Prosecutor into possible crimes against humanity and war crimes in Nigeria has been ongoing since 2010. The investigation is currently in the Phase III “Admissibility” stage, where the prosecutor is determining whether the Nigerian government’s proceedings “are substantially the same as those that would likely arise from an investigation” by her office and whether “those most responsible for the most serious crimes are being brought to justice.”

Boko Haram’s pledge of allegiance to the Islamic State on March 7 did not initially result in noticeable changes on the ground. Boko Haram’s recent targeting of moderate Muslim clerics, evangelical churches and perceived “non-believers” during Islam’s holy month of Ramadan, however, has made that pledge a reality.

Abubakr Shekau, leader of Boko Haram (photo: AFP)

Abubakr Shekau, leader of Boko Haram (photo: AFP)

Since the May 29 inauguration of President Muhammadu Buhari, a former military ruler who hails from Nigeria’s Muslim north, Nigeria, Chad and Cameroon have witnessed a significant resurgence of Boko Haram attacks. This comes after a series of territorial defeats in which Nigerian and Chadian-led regional counterinsurgency forces recaptured large swaths of territory in northeastern Nigeria from Boko Haram control.

Many of the attacks in recent weeks have been classic Boko Haram, marking a return to its militant roots with suicide bombings in urban markets and government buildings, as well as raids on villages across northeastern Nigeria. However, there have been two notable new developments that warrant special attention.

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Could South Sudan Push Provide Blueprint for China’s African Security Policy?

By Alex Fielding, @alexpfielding

This article is cross-posted from the International Peace Institute’s Global Observatory, with thanks to Jill Stoddard and James Bowen. 

South Sudan last week had the unenviable distinction of being ranked the world’s most fragile state for the second year running. With the country’s politically and ethnically driven conflict degenerating into civil war since December 2013, mediation efforts by the eight-country East African Intergovernmental Authority on Development (IGAD) and pressure by the United States, United Kingdom, and Norwegian “troika” have continually failed to achieve a lasting ceasefire.

As well as inflicting terrible tragedies on the people of South Sudan, with over 50,000 killed, 1.4 million displaced and 40% of the population facing acute hunger, the continuing instability is posing significant challenges for international actors. Most recently, the scale of the crisis has drawn China, as a rising regional power, but otherwise reluctant intervenor in other states’ internal affairs, firmly into play.

China's former President Hu Jintao with South Sudan President Salva Kiir, photo credit: Washington Post

China’s former President Hu Jintao with South Sudan President Salva Kiir, photo credit: Washington Post

China’s recent rise in Africa relative to the West has generated much attention. It has become the continent’s largest trading partner by far, with over 160 billion USD in trade in 2013 alone and more than a million Chinese nationals moving to Africa in the last decade.

With its extensive oil and infrastructure investments in South Sudan and similar economic leverage on nearby Sudan, Uganda, and other regional actors, China has engaged in a form of business-driven diplomacy that the US and its allies will struggle to match. South Sudan accounts for 5% of China’s crude oil imports and the state-owned China National Petroleum Corporation holds a 40% stake in three of the country’s largest oil fields. China has also been quietly ramping up its African humanitarian aid, pledging emergency relief worth at least 21 million USD to South Sudan as of October 2014.

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FIFA and the Internationalisation of Criminal Justice

We’re happy to cross-post this article from Robert Cryer on football and international justice (two subjects close to my heart!), originally posted on the Oxford University Press blog. Robert is professor of International and Criminal Law at the University of Birmingham. He is author of, amongst other things, The Tokyo International Military Tribunal: A Reappraisal (with Neil Boister). He was a co-editor of The Oxford Companion to International Criminal Justice (Lead editor Antonio Cassese). He is also co-editor of the Journal of Conflict and Security Law, and sits on the editorial board of the Journal of International Criminal Justice.

The factual backdrop to this affair is well-known. FIFA, world football’s governing body has, for a number of years, been the subject of allegations of corruption. Then, after a series of dawn raids on 27 May 2015, seven FIFA officials, of various nationalities, the most famous being Jack Warner, the Trinidadian former vice president of FIFA, were arrested in a luxury hotel in Zurich where they were staying prior to the FIFA Congress. This was pursuant to an indictment that accused them, alongside five corporate officials, of using their positions within FIFA to engage in schemes involving the solicitation, offer, acceptance, payment, and receipt of undisclosed and illegal payments, bribes, and kickbacks. The defendants and their co-conspirators were also accused of corrupting the enterprise by engaging in various criminal activities, including fraud, bribery, and money laundering, in pursuit of personal and commercial gain.

The allegations relate in particular to the bidding process for the right to hold the World Cup. To the surprise of some, FIFA’s president, Sepp Blatter, was not included in the indictment, although further investigations, both in the United States and Switzerland, are ongoing, and calls for him to step down have been made, including by the British Prime Minister David Cameron.

Corruption, and its fellow traveller money laundering, tends to cross borders, and with an entity such as FIFA and an event such as the World Cup, it would be difficult to imagine that there could not be an international element to the case. But the indictment in one country of nationals of various countries, and arrests in another pursuant to an extradition request, have given rise to different conceptions of criminal justice: one internationalist, the other nationalist.

The former can be seen on the part of US officials, who, when announcing the arrests and indictments, thanked the government of Switzerland and other unnamed States for their ‘outstanding assistance’ in the investigation. Given that the conduct related in large part to money laundering into and out of the United States and to bribes that went through US banks and deposited abroad, it is no surprise that the cooperation of other States was required. What might be surprising though is that mutual legal assistance, at best a sclerotic system, seems to have worked in this case, although it was helped by guilty pleas by four FIFA officials including the ex-US member of the FIFA executive committee. It is notable that the rhetoric of the United States was very much of the internationalisation of the crimes and the effect they had in developing countries. As IRS Chief of Investigation, Richard Weber (clearly no stranger to a bon mot) described the charges, they relate to a ‘World Cup of corruption’.

Zurich, Switzerland - May 28, 2011: Entry to the headquarter of the world football association FIFA in Zurich, Switzerland. © thamerpic via iStock.
Zurich, Switzerland – May 28, 2011: Entry to the headquarter of the world football association FIFA in Zurich, Switzerland. © thamerpic via iStock.

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