JURIST Guest Columnist Gregory Gordon of the University of North Dakota School of Law says that in light of the case of Joshua arap Sang, and for purposes of educating the public and deterring future would-be perpetrators, we need a more accurate understanding of the rapidly evolving area of international speech crime law…

An article posted this week on The Atlantic website regarding the International Criminal Court (ICC) case against Kenyan radio announcer Joshua arap Sang raises some important issues related to international speech crime law, but also creates much confusion. Arap Sang is accused of committing crimes against humanity in part through broadcasting messages urging violence against certain Kenyan ethnic groups following the controversial 2007 presidential election. Unfortunately, in describing this case, The Atlantic article, “Kenyan Trial Asks, Can Journalism Be a War Crime,” confuses incitement to commit genocide with persecution—a crime against humanity under international law—erroneously indicating that arap Sang is being accused of the former. And the article gives a partially inaccurate historical account of the verdict against Nazi journalist Julius Streicher at Nuremberg. As international speech crime law is at a critical juncture in its relatively short history, I believe some clarification is in order.

The Atlantic article is like other press accounts of international speech crime cases in which journalists understandably raise the specter of illegitimate suppression while trying to parse a complex body of law, forged primarily through cases decided at the International Criminal Tribunal for Rwanda (ICTR). With recent speech crime allegations being leveled against embattled leaders in Libya and the Ivory Coast, as well as a recent South African high court judgment finding that controversial politician Julius Malema committed incitement to murder for singing “Shoot the Boer” at rallies, it is important to set the record straight regarding the case against arap Sang and the current state of international speech crime law.

Most of the problems in the article stem from confusing two different crimes—direct and public incitement to commit genocide and persecution. The crime of direct and public incitement to commit genocide was first formulated in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. This inchoate offense arises uniquely in the context of genocide—in other words certain acts (most prominently killing) performed with the intent to eliminate, in whole or in part, a national, ethnic, racial, or religious group, as such. Given its inchoate nature (like attempt or solicitation), incitement gives rise to criminal liability even if the target offense is not consummated. Thus, resultant violence is not a necessary element. With respect to Streicher, given that he was convicted in 1946 before adoption of the Genocide Convention, The Atlantic is wrong in stating that he was found “guilty of incitement.” In fact, he was found guilty of crimes against humanity—persecution on political and racial grounds (although, in fairness, the Nuremberg Tribunal stated Streicher committed his crimes by “inciting to murder and extermination”).

Crimes against humanity, for its part, is different from incitement to commit genocide. Crimes against humanity consists of certain acts (including persecution) committed as part of a widespread or systematic attack directed against any civilian population. The ICTR has held that, in certain contexts, hate speech can constitute the crime against humanity of persecution. Although a trial chamber for the International Criminal Tribunal for the former Yugoslavia (ICTY) has taken the opposite position.

Interestingly, although arap Sang is accused by the ICC of crimes against humanity (persecution on political grounds), the persecution alleged does not stem directly from radio hate speech targeting ethnic minorities. Rather, the persecution is based on acts of murder and forcible transfer of population perpetrated against civilians on the basis of their political beliefs. The hate speech is implicated only indirectly—as part of various acts in support of a joint criminal enterprise between arap Sang and two co-defendants to commit the murders and deportations. So the potential free speech concerns should not be as direct as they would be if hate speech itself, qua hate speech, were the sole basis of the charge.

Unfortunately, The Atlantic article inaccurately suggests that arap Sang is facing possible incitement to commit genocide charges. In fact, there are no allegations of genocide connected to the Kenyan post-election violence. A fortiori incitement to commit genocide is not at issue. Nevertheless, citing an ICTR holding on incitement to commit genocide, not crimes against humanity, the article erroneously concludes that arap Sang could be convicted even if his radio broadcasts are not causally linked to the Kenyan post-election violence. As just noted, since arap Sang is not even charged with incitement, this analysis is sloppy at best, and misleading at worst (as is the title’s suggestion he is currently on trial—a hearing to confirm proposed charges is set for September). The analysis is especially problematic, given that arap Sang’s broadcasts are not in and of themselves the basis of any criminal charges against him; they are only used in support of non-speech-related charges (murder and forcible transfer of population as part of a joint criminal enterprise with other defendants).

International speech crime law is still evolving and perhaps has yet to strike the ideal balance between properly protecting legitimate free speech and effectively preventing and punishing illicit violence advocacy. But it has made great strides. As the likes of arap Sang and Muammar Gaddafi face the prospect of justice in The Hague, for purposes of educating the public and deterring future would-be perpetrators, we need an accurate understanding of this rapidly evolving area of law. The press has its own challenges and biases in covering stories related to speech crime cases, which often appear simple on the surface but can be quite complex from a legal perspective. So it must do its homework. Of course, at the same time, we should not ignore the potential chilling effects of criminal speech cases, especially when journalists are involved. Let us hope that going forward such cases can be reported more accurately. Stoking public fears of judicial overreaching in the area of freedom of expression may sell more papers but it is not in our best interests.

Gregory Gordon is the Director of the Center for Human Rights & Genocide Studies, and professor of international and criminal law at the University of North Dakota School of Law. From 1996-1997, he served as Legal Officer and Deputy Team Leader for the landmark “media” cases at the ICTR, the first international post-Nuremberg prosecutions of radio and print media executives for incitement crimes. His previous contribution to JURIST was a critique of the Goldstone Report.

Suggested citation: Gregory Gordon, Setting the Record Straight on International Speech Crime Law, JURIST – Forum, May 24, 2011, http://jurist.org/forum/2011/05/gregory-gordon-arap-sang.php.