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Inciting Genocide with Words

45 Pages Posted: 22 May 2014 Last revised: 21 May 2015

Richard Ashby Wilson

University of Connecticut School of Law; University of Connecticut

Date Written: February 19, 2015

Abstract

This article calls for a rethinking of the causation element in the prevailing international criminal law on direct and public incitement to commit genocide. After the conviction of Nazi propagandist Julius Streicher at Nuremberg for crimes against humanity, the crime of direct and public incitement to commit genocide was established in the UN Convention on the Prevention and Punishment of Genocide in 1948. The first (and thus far, only) convictions for the crime came fifty years later at the International Criminal Tribunal for Rwanda (ICTR). The ICTR’s incitement jurisprudence is widely recognized as problematic, but no legal commentator has thus far offered an adequate solution to one central contradiction, namely the Trial Chamber’s repeated claims of a causal connection between defendants’ speech and subsequent acts of genocide. Such claims imply that the commission of genocide is relevant to determining incitement, despite the fact that incitement is an inchoate crime and therefore only the speaker’s intention matters. Drawing upon J.L. Austin’s ordinary language philosophy, the article disentangles the intention of the speaker from the consequences of speech acts. In determining incitement to commit genocide, international law might differentiate between three aspects of performative utterances, or what Austin terms the "locutionary" (the meaning and content), the "illocutionary" (its force) and the "perlocutionary" (the consequences) qualities of speech acts. Specific intent to commit genocide is found in the content, meaning and force of speech acts, rather than in consequences, which can be an unreliable guide to intention. By using this template, international tribunals might better distinguish modes of liability that require causation (such as instigating) from inchoate crimes such as direct and public incitement to commit genocide, where the meaning and the force of public statements is paramount. Other benefits of this approach include refocusing attention on the prevention of genocide and clarifying and narrowing the range of impermissible speech.

Keywords: Genocide, Incitement, International Tribunals, International Criminal Law, Speech Act Theory, J.L. Austin, Law and Philosophy, Human Rights

Suggested Citation

Wilson, Richard Ashby, Inciting Genocide with Words (February 19, 2015). Michigan Journal of International Law, Vol. 36, No. 1, 2015, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2439325 or http://dx.doi.org/10.2139/ssrn.2439325

Richard Wilson (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

HOME PAGE: http://www.law.uconn.edu/faculty/profiles/richard-wilson

University of Connecticut ( email )

354 Mansfield Road
Storrs, CT 06269-1176
United States

HOME PAGE: http://humanrights.uconn.edu/faculty_staff/richard-wilson/

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