Public enemy: the public element of direct and public incitement to commit genocide.

• Author: Saslow, Brendan

Direct and public incitement to commit genocide has been an international crime since the 1940s. The public element plays a role in each international incitement case, yet many scholars consider it straightforward and unworthy of attention. This article seeks to analyze jurisprudence, primarily developed at the International Criminal Tribunal for Rwanda, on how to determine whether inciting to commit genocide is public. This element is most problematic in cases involving speech through broadcast media such as television and radio. Moreover if ICTR case law informs future international criminal proceedings it may be an issue in a future genocide that involves the Internet and social media. This Article ultimately concludes with several suggestions on how factors for finding whether speech is public or private should evolve in order to account for modern forms of communication.

CONTENTS I. NUREMBURG TO ARUSHA: THE JURISPRUDENCE OF PUBLIC INCITEMENT TO COMMIT GENOCIDE A. History of the Public Element Before the Genocide Convention B. How the Public Element Developed at the Rwanda Tribunal 1. Soapbox speeches and clandestine meetings: the primary factors of public incitement 2. Tipping points and television: subordinate factors of public incitement C. Summary of the Modern Legal Framework II. SUGGESTIONS TO CLARIFY THE PUBLIC ELEMENT A. The Select or Limited Factor as a True Affirmative Defense B. Refine the Definition of a Public Place C. Elevate the Medium Factor from a Subordinate to a Primary Factor III. THE FUTURE OF PUBLIC INCITEMENT TO COMMIT GENOCIDE IV. CONCLUSION **********

"Public incitement occurs only if the appeal is likely to be heard by a large, undefined audience." (1)

Imagine a depraved government official issuing a message via Twitter. The message contains a veiled order to thousands of citizens to violently attack a minority group. The citizens lash out and slaughter the group nearly to extinction, as performed in genocides throughout history. To hold the provocateur liable, a law must predictably consider when speech constitutes a crime.

Incitement to commit genocide is a notoriously problematic international crime. (2) Susan Benesch, founder of the Dangerous Speech Project and professor at American University, explains that it is critical to clearly define it. (3) Distinguished Chair of Human Rights at the University of Connecticut, Richard Wilson has approached incitement by clarifying causation. (4) Meanwhile, international criminal bodies continue to develop speech crimes. (5) Despite attempts to clarify incitement to genocide, defendants have exploited the public element with varying degrees of success. (6) This element may also expand the application of international incitement by extending its application to virtual communications, like email and social media.

Under the Convention on the Prevention and Punishment of the Crime of Genocide (the "Genocide Convention") and the Statutes of the Rwanda and Yugoslavia Tribunals, direct and public incitement is a separate crime from genocide. (7) In each of these three instruments, direct and public incitement to commit genocide exists in a list that includes genocide and four distinct crimes (conspiracy, incitement, attempt, and complicity). (8) While all four relate to genocide, listing each in its own independent section allows ad hoc tribunals to convict defendants for actions that implicate genocide without actually convicting a defendant of genocide proper. (9) This is helpful because genocide is particularly difficult to prove. (10)

Direct and public incitement to commit genocide is established in Article III(c) of the Genocide Convention, (11) Article 11(3) (c) of the International Criminal Tribunal for Rwanda (ICTR) statute, (12) Article IV(3)(c) of the International Criminal Tribunal for Yugoslavia (ICTY) statute, (13) and Article 25(3)(e) of the Rome Statute of the International Criminal Court (ICC). (14) In the international criminal context, the ICTR remains the only international criminal tribunal that has ever indicted an individual for the crime. Neither the ICC (15) nor ICTY (16) has had occasion to contribute to the crime's case law. The public element is noteworthy for its covert power to undermine rulings of incitement to genocide. In some cases judgments only give it lip service, whereas, in more recent cases, it has led to acquittals. (17) A beneficial approach would distill a method to consistently and efficiently decide whether incitement to commit genocide is public.

This note attempts to capture the developing complexity of the public element. It argues that the select and limited factor is more appropriately characterized as a defense. The place factor must be appropriately defined and the medium factor should ascend to a more dominant role of the legal analysis. (18) This new structure will help future courts evaluate the public element given modern virtual forms of communication. Part I begins by summarizing the development of the public element, emphasizing the purposes for including it in the Genocide Convention and the contemporary legal framework developed at the ICTR. Next, part II recommends that future decisions approach the select and limited factor as a defense and clarify the public and medium factors. Part III then considers how future rulings should develop the public element in regard to email and social networking platforms. Finally, part IV offers concluding remarks.

1. NUREMBURG TO ARUSHA: THE JURISPRUDENCE OF PUBLIC INCITEMENT TO COMMIT GENOCIDE

   Direct and public incitement to commit genocide is an inchoate crime. (19) Genocide does not ever have to occur for a defendant to be convicted. (20) To make a conviction, a criminal chamber must find the accused (1) intended to perpetrate direct and public incitement to commit genocide, and (2) perpetrated action that constitutes direct and public incitement to commit genocide. (21) Genocidal intent is assumed to be present when a judge finds intent to commit direct and public incitement to commit genocide. (22) Directness and publicness are elements of genocidal incitement. (23) The public element requires a finding that both the actus reus was public and the accused had the mens rea to perpetrate incitement to genocide that was public. (24) This element does not fit squarely within the traditional elements of a crime (actus reus and mens rea). (25)

   Throughout its history scholars have treated the public element as straightforward. (26) Still, as an element, if a court does not find that incitement was public, then it cannot convict a defendant. (27) Interestingly, defendants cannot be convicted for inciting genocide in private. (28) If a superior incites his or her subordinates to commit genocide, that conversation is likely to be considered private. (29) The drafters of the Genocide Convention chose this method to limit the inchoate breadth of incitement to genocide. (30) The modern definition of "public" relies on civil law formulations and the International Law Commission's 1996 definition. Under the ILC definition, "public incitement is characterized by a call for criminal action to a number of individuals in a public place or to members of the general public at large by such means as the mass media." (31) In other words, incitement is public when a perpetrator incites genocide in a public place, public by definition, or to the general public by radio or television. (32) It took 60 years for the international community to develop this modern formula.

   1. History of the Public Element Before the Genocide Convention

      Incitement to genocide dates to the International Military Tribunal at Nuremberg, following the Holocaust. (33) Prosecutors accused German defendants Julius Streicher and Hans Fritzsche of speech crimes, at the time categorized as a crime against humanity. (34) Streicher, editor of the anti-Semitic publication Der Stiirmer, (35) was convicted of "incitement to murder and extermination" for "persecution on political and racial grounds." (36) He was the only IMT defendant executed exclusively for crimes against humanity. (37) Fritzsche was a senior Nazi official and radio announcer known for his radio program "Hans Fritzsche speaks." (38) He was acquitted. (39) Streicher, specifically, set the foundation for modern international criminal liability for incitement to commit genocide. (40)

      After the Nuremburg tribunal, the United Nations drafted the modern day Genocide Convention, defining genocide for the first time. (41) Article III(c) sets "direct and public incitement to commit genocide" as an international crime. (42) It was adopted into force, as part of the Genocide Convention, on January 12, 1951, after a lengthy drafting process. (43)

      In comments to the first draft, the Secretariat explained that "direct public incitement" did not encompass "orders or instructions by officials to their subordinates" or by "heads of an organization to its members." (44) The Secretariat also emphasized the importance of inchoate offenses in its initial draft. (45) It referred to some as "preparatory acts." Strikingly, the Secretariat distinguished the inchoate offense of incitement, (46) a crime that excluded inciting orders from superiors to subordinates. (47) Instead, these crimes were eventually eliminated as types of preparatory acts, but incitement to genocide survived in its modern form. (48) William Schabas, professor of international law and a preeminent genocide scholar, argues that defendants are liable for such orders under complicity in genocide, Article 111(e). (49) This context complicates charges and may lead to acquittals if prosecutors indict a defendant for incitement, rather than complicity.

      Debates over incitement, as an inchoate crime, were particularly fierce. The United States was concerned about limiting free speech. The Soviet Union, on the other hand, felt that inchoate incitement was not potent enough. (50) To strike...