Of War-Councils and War-Mongering: Considering the Viability of Incitement to Aggression

Abstract

This paper considers whether "incitement to aggression" may be a viable crime. It concludes that it can but with certain limitations. In relation to incitement, aggression-related discourse can theoretically be bifurcated between what the paper refers to as “war-council” speech and “war-mongering” speech. Regarding the former, it is important to consider that aggression is a leadership-oriented crime with an in personam jurisdiction limited to an individual exercising control over the political or military action of a State. However, such an individual, even if the most powerful dictator, is not capable of carrying out himself the multitude of simultaneous and multi-level tasks necessary to plan and launch a modern aggressive war. He will operate within some sort of bureaucratic framework and/or military hierarchy that will necessarily require communication with other government/military officials as part of such an enterprise. Such communications essentially represent “councils of war” conducted in the relatively insular corridors of power. With respect to such “war-council" aggression speech, the utility of any corollary incitement provision is questionable -- those who would act -- the controllers of the government/military apparatus -- need no exhorting as they monopolize agency. Moreover, unlike the other core crimes, any theoretical “inciting” speech connected to war-council aggression conduct does not as directly entail dehumanization or marginalization of an out-group being targeted for violence or inhumane treatment. But the other variety of aggression-related discourse that a theoretical incitement crime implicates, “war-mongering,” is quite different. It implicates government leaders conditioning their citizens to support illegal war campaigns through speeches and mass media. It is not always a sine qua non for perpetrating the crime of aggression (as war-council conduct is) but, in cases of controversial war campaigns, it is sometimes needed to assure sufficient troop morale and civilian cooperation. And it empirically entails speech dehumanizing the enemy population. Further, it has historically been recognized as an offence. So criminalizing it via incitement makes more sense and, indeed, fills important gaps within the aggression offence’s definitional and operational framework. Thus, the crime of direct and public incitement to commit aggression, the public element implicitly excluding "war-council" communication, is certainly viable. Given aggression’s role as the breeding ground for the other core ICL crimes, qualifiedly including it within the envelope of incitement achieves the proper balance between sound policy and doctrinal coherence.

Keywords: international criminal law, incitement, aggression, international criminal court, jus ad bellum, atrocity speech, hate speech, freedom of speech, Nuremberg trials, Tokyo trial, just war, dehumanization, history of international criminal law