Vile Crime or Inalienable Right: Defining Incitement to Genocide

44 Pages Posted: 18 Apr 2008

See all articles by Susan Benesch

Susan Benesch

Georgetown University Law Center

Abstract

This article is the first to propose a test for defining incitement to genocide and, especially, for distinguishing it from hate speech. As courts have decided the world's first cases on incitement to genocide in the last decade, they have sometimes diverged alarmingly, as when a Canadian federal court described a speech as an oration on "elections, courage, and love" and then the Canadian Supreme Court identified it as incitement to genocide.

Without a reliable distinction, a mere racist could be convicted of a crime tantamount to genocide, and speech might be unduly and dangerously restricted. Incitement to genocide demands keen attention for another reason, also: it is a precursor to genocide, and may be a prerequisite for it. Political leaders in Nazi Germany, Rwanda, and other pre-genocidal societies prepared civilian populations to condone genocide, by using certain techniques to make mass killing seem first acceptable, and then necessary. This article describes those techniques, and includes them in a new six-prong model for incitement to genocide. The article also proposes a key distinction between incitement to genocide and hate speech: that anyone can commit hate speech, but a speaker must have influence or authority over the audience, to be able to commit incitement to genocide. Such authority need not be de jure, as demonstrated by the case of the Rwandan pop star Simon Bikindi, whose songs were played incessantly during the 1994 genocide, and who is now a defendant at the Rwanda war crimes tribunal.

Keywords: international criminal law, free speech, hate speech, incitement, genocide, war crimes, Rwanda, genocide, Holocaust, First Amendment, Darfur, Nazi

JEL Classification: K33

Suggested Citation

Benesch, Susan, Vile Crime or Inalienable Right: Defining Incitement to Genocide. Virginia Journal of International Law, Vol. 48, No. 3, 2008, Available at SSRN: https://ssrn.com/abstract=1121926

Susan Benesch (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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