some notes on Atrocity Speech Law, exploring whether Assadist propagandists could be held criminally liable
I just began reading around this topic today, so this is by no means conclusive but just beginnings of a reading list and some notes so far.
For a long time already we’ve commented that public figures who are major propagandists for the Assad regime involved in atrocity crimes denials and demonising the Syrian civilian political opposition, particularly organized Syrian civil society groups resisting the regime’s military strategy of mass extermination and forced displacement, by rescuing people and slightly relieving the despair that would otherwise be more effective in coercing people into accepting “voluntary” “humanitarian evacuations” to IDP camps, may be criminally liable for incitement of those crimes.
I’m thinking only of the major public figures who it is most likely provable that they have the mens rea or criminal intent of speech inciting atrocity crimes and who are clearly not just useful idiots. For the sake of simplicity I’ll focus on Vanessa Beeley, because her public actions have been well monitored and recorded, she’s shown the clearest criminal intent and from the amount she travels internationally and full-time to speak at Pro-Assad propaganda events it is hardly plausible she could not be in the pay of the regime.
Terminology
Legal terminology about international crimes and their categories is both highly precise and somewhat incoherent because it has evolved in such a highly contested international political context.
‘Atrocity crimes’ is the category containing: 1) war crimes, 2) crimes against humanity and 3) genocide crimes. These are all clearly distinct categories of crimes in international law — although colloquially they’re often mixed up.
War crimes is the broadest category and you can read what is included in the ICC page. Crimes against humanity — the main distinguishing point is that they are ‘widespread or systematic’. Genocide crimes — the main distinction is that the criminal intent is ‘to destroy a racial, religious or ethnic group’ — with that intent, if even only one person is killed, it is in theory a genocide crime, although practically it would be probably impossible to prove the specific criminal intent ‘to destroy a group’, but the number of people killed is not a factor. It is defined that way in order to make the legal definition of incitement to genocide have preventative effect — to stop the process early.
Main difficulties for prosecuting atrocity speech crimes
The most difficult part of proving a case of incitement to genocide is proving the mens rea, or criminal intent, which is the ‘intent to destroy a racial, ethnic or religious group’, by means of inciting acts of genocide.
Incitement to crimes against humanity the most difficult part to prove is the intent to incite “widespread or systematic” crimes against humanity.
Incitement to war crimes is, incoherently, not yet internationally or domestically legislated for as a criminal charge.
For no sensible reason, crimes against humanity and war crimes are still politically and legally treated as though they were less serious than genocide.
Evidence collection required to show intent to incite widespread or systematic attacks on civilian humanitarian rescue workers
There might be an argument to include Beeley’s abetting or incitement of systematic and widespread attacks on civilian humanitarian rescue workers under ‘incitement of crimes against humanity’, which would make it prosecutable under the current legal framework and not need to wait for a revision of the law to provide redress for the crimes of abetting, incitement, instigation or ordering of war crimes as inchoate too.
Article 8 (2) (b) (iii) defines the war crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission.
Article 7 (1) (k) defines the Crime against humanity of other inhumane acts.
For it to be a ‘crime against humanity’ and not just a ‘war crime’, the “conduct [must have been] committed as part of a widespread or systematic attack directed against a civilian population”.
The challenge for a prosecution case would be to show that the suspect had the intention to incite such widespread or systematic attacks on a humanitarian assistance mission that it becomes relevant under the category of crime against humanity and not just individual war crimes. I think that evidentiary test could be passed in Vanessa Beeley’s case.
If this interpretation is valid, then the argument could also avoid the problem that “soliciting” or “inducing” a war crime is not defined as an inchoate crime, whereas inciting crimes against humanity or genocide are inchoate crimes, meaning that you don’t have to prove a causal connection to the actual acts of crimes against humanity or genocide occurring, only that the speech intended to incite those acts. The inchoate element of the law is intended to make it preventative, and is proportionate restraint on freedom of speech because the severity of criminal acts it aims to prevent vastly outweighs the imposition on free speech in general.
“ the current law on criminal speech in the military context deals with only a very limited range of actions, mainly direct orders to commit war crimes. Even with respect to the Rome Statute, which includes “soliciting” and “inducing” commission of war crimes, actual consummation or attempt to commit the target crime is mandatory for inculpating a defendant who does not issue an order. There is no liability for incitement. And this squarely undermines the potential early enforcement benefit of inchoate liability as law enforcement may not act precommission to prevent war crimes after the violence-conditioning process commences. Only once the slaughter begins could liability attach for solicitation/inducement. This represents a gaping normative hole that must be filled by including an incitement offense in relation to war crimes, as will be suggested in Chapter 10.”
Atrocity Speech Law: Foundation, Fragmentation, Fruition,
Gregory S. Gordon. Print publication date: 2017 Print ISBN-13: 9780190612689 Published to Oxford Scholarship Online: May 2017 DOI: 10.1093/acprof:oso/9780190612689.001.0001
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780190612689.001.0001/acprof-9780190612689
To view the e-book above you’ll need a university or institutional login, or pay a small fortune for access to just that book.
Short video introduction to the book, here:
Gregory Gordon also proposes extending the legal definitions of atrocity speech crimes and making the law coherent —
The following essay by Wibke Kristin Timmermann explains the historical development of atrocity speech crimes law:
I hope we can collect the evidence already recorded in the case of a few high profile public figures who are majorly involved in designing, creating and broadcasting Assadist propaganda that incites widespread or systematic attacks against civilian humanitarian rescue workers. Then ask Prof. Gordon for a legal opinion on the applicability of the current legal framework to their acts, and then forward the summary of evidence collected so far and the expert legal opinion to the SO15 War Crimes investigation unit at the Met Police to ask for a scoping investigation as to whether there are sufficient grounds for a successful prosecution and in the public interest.
