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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Has the Pre-Trial Chamber jeopardized the Gbagbo trial at the International Criminal Court?

Beyond The Hague welcomes Matthew Gillett for this guest post on the Gbagbo case at the ICC.  Matthew is currently a Legal Officer with the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and was a member of the New Zealand delegation to the Review Conference of the International Criminal Court (ICC) in 2010. The views expressed in this article are those of the author alone and do not necessarily reflect the views of the United Nations, the New Zealand Government or Beyond The Hague. The author would like to thank Manuel Ventura for his insightful comments.

On 12 June 2014, Pre-Trial Chamber I (“PTC”) of the International Criminal Court (“ICC”) issued its conformation decision concerning the charges against the former President of Cote d’Ivoire – Laurent Gbagbo. Problematically, the majority decision of the PTC confirmed the charges for modes of liability under article 25 but declined to confirm the charges for superior responsibility under article 28. This outcome is difficult to reconcile with the PTC’s earlier findings in the confirmation decision. It results in the Trial Chamber receiving a proceeding that has been straight-jacketed into a mould that the facts may not ultimately fit. Indeed, Judge Van den Wyngaert in her dissenting opinion found that the facts were insufficient to satisfy article 25 even on the relatively permissive article 61(7) standard, but she would have confirmed under article 28 in part. In these circumstances, the spectre of regulation 55 re-characterization lurks in the background, along with its attendant potential prejudice to the integrity and efficiency of proceedings.

Laurent Gbagbo at the ICC, photo: Telegraph

Laurent Gbagbo at the ICC, photo: The Telegraph

Under the applicable standard set forth in article 61(7) of the Rome Statute, the PTC assessed whether it had been provided with sufficient evidence to establish substantial grounds to believe that Laurent Gbagbo was responsible for each of the crimes charged. The PTC confirmed the modes of liability ofco-perpetration under article 25(3)(a), ordering, soliciting or inducing under article 25(3)(b), and contributing to a group with a criminal purpose under article 25(3)(d), and committed the case for trial. However, it declined to confirm Gbagbo’s superior responsibility for the charges under article 28(a) or (b) despite the request of the Office of the Prosecutor (“OTP”) to do so.

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“Maidan” v. Yanukovych et al.: Ukraine and the ICC?

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Photo credit: Guardian

Keeping in mind the situation in the streets of Kiev this time a week ago, it is difficult to comprehend the speed of changes taking place in Ukraine over the past few days. The agreement reached last Friday between the opposition and president Yanukovych has now become largely outdated. Point number four, however, remains relevant:

“Investigation into recent acts of violence will be conducted under joint monitoring from the authorities, the opposition and the Council of Europe”

Only yesterday morning we learned that the new Ukrainian authorities issued an arrest warrant for Viktor Yanukovych for “mass murder of peacefully demonstrating citizens”. Today, the Parliament of Ukraine voted in favour of prosecuting former president Viktor Yanukovych, former interior Minister Vitali Zakharchenko and former Prosecutor-General Viktor Pshonka at the International Criminal Court.  Continue reading

Hate Crime Against Humanity? Persecution on the Grounds of Sexual Orientation under the Rome Statute

by Rosemary Grey

Rosemary Grey joins Beyond The Hague today with a post that questions the ‘constructive ambiguity’ of the gender language in Article 7(3) of the Rome Statute and asks whether persecution on the grounds of sexual orientation can be considered a crime under the jurisdiction of the International Criminal Court. Rose is a PhD Candidate at the School of Social Sciences, Faculty of Arts and Social Sciences, University of New South Wales. She can be reached at r.grey@unsw.edu.au and here.

The Sochi Games has focused international attention on Russia’s human rights record, particularly its laws that discriminate and sow prejudice against lesbian, gay, bisexual, transgender or intersex (LGBTI) people. UN Secretary-General Ban Ki-moon nodded at this issue in his address to the Olympic Committee on February 6, stating:

We must all raise our voices against attacks on lesbian, gay, bisexual, transgender or intersex people. We must oppose the arrests, imprisonments and discriminatory restrictions they face.

Ban’s call to action reflects the fact that in recent years, the UN has become increasingly vocal in promoting LGBTI rights. For example in 2011, the Office of the High Commissioner for Human Rights (OHCHR) published its first report on discrimination and violence on the grounds of sexual orientation and gender identity. The report documents targeted killings, rapes, and assaults of LGBTI people, and highlights decisions and general comments of treaty bodies that confirm that discrimination on the ground of sexual orientation is prohibited under international human rights law.[1]  Building on this momentum, in 2013 the Human Rights Office launched the  “Free and Equal” campaign, aimed at combating discrimination against LGBTI people worldwide.

AmsterdamProtest

August 2013 Protest in Amsterdam. Source: AFP

Meanwhile, discrimination against LGBTI people under domestic law continues in many states, and in some places is getting worse. Russia is not an isolated example: several States Parties to the Rome Statute are also moving backwards on LGBTI rights. For example, Uganda, which in 2004 became the first State Party to refer a situation to the ICC and in 2010 had the privilege of hosting the Rome Statute Review Conference, is in the process of enacting legislation that prescribes life imprisonment for people convicted of homosexual acts.  Nigeria, another State Party, has recently enacted anti-homosexuality laws that UN High Commissioner for Human Rights Navi Pillay describes as “draconian.”

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