Inciting Genocide with Words
45 Pages Posted: 22 May 2014 Last revised: 27 Jan 2019
Date Written: February 19, 2015
This article calls for a rethinking of the causation element in the prevailing international criminal law on direct and public incitement to commit genocide. 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, and this Article offers a solution to one central contradiction, namely the Tribunal’s repeated claims of a causal connection between defendants’ speech and subsequent acts of genocide. Such claims imply that the actual 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 Austin’s ordinary language philosophy, the article disentangles the intention of the speaker from the consequences of speech acts. Specific intent to commit genocide is found in the content, meaning and force of speech acts, rather than in consequences, which are an unreliable guide to intention. International tribunals might distinguish more carefully those 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: Suggested Citation