Book Review: Incitement on Trial: Prosecuting International Speech Crimes

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Incitement on Trial: Prosecuting International Speech Crimes. By Richard Ashby Wilson. Cambridge: Cambridge University Press, 2017. xii, 356 p. Includes bibliography and index. ISBN 978-1-107-10310-8 (hardbound) $92.00; ISBN 978-1-107-50126-3 (paperback) $34.00.

Reviewed by David Hurren
Hurren and Gibson, Fort Erie, ON
In CLLR 43:2

Incitement on Trial by Richard Ashby Wilson is a detailed examination of the International Criminal Court (ICC) and its inability to prosecute what the author calls the inchoate crime of incitement. Wilson’s book goes beyond mere fact-finding and reporting: it is a critical review of the functioning of the ICC in the prosecution of incitement as a war crime.

In the book’s description, the publisher explains that these type of conflicts “are usually preceded by a media campaign in which public figures foment ethnic, national, racial or religious hatred, inciting listeners to acts of violence. Incitement on Trial evaluates the efforts of the international criminal tribunals to hold such insiders criminally responsible.” The author expands the scope, stating that the book “evaluates the efforts of the international tribunals to hold media owners and broadcasters, politicians and other public figures criminally responsible for inciting speech acts, from the International Military Tribunal at Nuremberg in the 1940s to the International Criminal Court of today” (p 1-2).

Two themes are explored: first, that inciting hate, advocating genocide, and other forms of “speech crimes” are crimes, per se, and inchoate because the advocated violence may or may not necessarily ensue; and secondly, that the publication, including media coverage, of the inciting speech is, or should also be, a crime. The notion that reporting on hate speech should be a crime per se may not be universally shared. The attempt to criminalize the act of reporting or publishing is sure to conflict with the competing notion of the right, if not the positive duty, of the media to report all news no matter how odious. In addition, attempting to prosecute publication is sure to conflict with the more expansive and fundamental right to free speech. Those in support of the criminalization of publication argue that if the segment of the population disposed to act upon such incitement isn’t made aware of the offending hate speech, either directly or through the media, then that segment may not be otherwise motivated to act upon it. In this argument, hate speech prosecutions should be pre-emptive and seek out and prosecute hate speech before it has a chance to manifest itself in war crimes of violence against an identifiable group.

In pursuit of proving his theses, Wilson analyzes some historical occurrences of speech crimes, as well as some attempts of the international community to prosecute them. His analysis always comes to the same conclusion, and he is clearly dissatisfied with the result.

The reader will soon detect that the main reasons for this perceived lack of success are factors such as the lack of a clear consensus about what activities constitute incitement. Even in the seemingly clearest of cases, such as the Nazi programme of propaganda against the Jews, the author points out that the Nuremburg trials of two of the chief Nazi propagandists, Julius Streicher and Hans Fritzche, produced inexplicably opposite results. Notwithstanding evidence that both men published hatred against the Jews, Streicher was found guilty and hanged while Fritzche was found not guilty. Consistency, Wilson argues, is lacking.

In the more modern era, it appears that some of the lack of success in prosecuting incitement is because incitement is not always capable of attracting the same level of attention as other war crimes; for example, the attention that was received by the prosecutions of the World War II atrocities. Much of the book is dedicated to the examination of the case against Vojislav Seselj, a Serb nationalist who figured prominently as a propagandist in the Serb/Croat conflicts in the Balkans. His case study appears repeatedly in the book and is a lightning rod for a great deal of the author’s criticism of the ICC. It seems to me that, apart from discussion amongst students of international criminal law, Seselj’s case was not widely known or greatly discussed either in the media or at the local Tim Hortons. It may also be a fair comment that the activities of the international courts and tribunals in such matters cultivate very little attention in the mainstream media, particularly in North America, especially the United States. Wilson’s exhaustive study focusses on one particular aspect of international law and is, perhaps, of limited general interest.

In Wilson’s examination of the Seselj (ICTY, 2016) case, we read that Seselj was completely exonerated of a nine count indictment including incitement to commit war crimes. The author notes that that verdict is under appeal and may be changed by that process, but he goes to great lengths to demonstrate that the trial, in his opinion, was a farcical affair. Seselj conducted his own defence, browbeat and intimidated the judges and prosecutors, and mocked, ridiculed and argued with prosecution witnesses. Wilson does not hide the fact that he thinks that the lead judge in the three-man panel was incompetent, the prosecutors were less than effective, and many of the witnesses had recanted or were intimidated or bribed into silence. He suggests also that the failure to successfully prosecute many other Balkan war crimes was a result of witness intimidation, bribery, and the inevitable recantations.

Some of the book is dedicated to an examination of the war crimes that took place in the Rwanda Civil War between the Tutsi and Hutu. In those trials, some of the perpetrators, including members of the media, were convicted and some were acquitted. Again, in his examination of those trials, Wilson is critical of the process and apparently not at all happy with the inconsistent results. His chief complaint is that the ICC panel failed to give due weight to the testimony of the prosecution expert, Mathias Ruzindana, who testified a great length about a number of things: the sociological factors, the cause and effect links of the publication to the genocide, and the metaphorical references in the hate speech that were euphemistic code for more serious activity. Wilson argues that social science analysis can be a useful tool in identifying incitement and hate speech and that the courts accept the analysis on an inconsistent basis.

In the closing chapter, Wilson makes a series of recommendations that he suggests would make prosecutions more successful. He also advocates that the prosecution of the inchoate crime of incitement be undertaken as a preventative measure in an effort to prevent the atrocities from being committed. Currently, of course, it has been the rule, by and large, that incitement only becomes visible as a crime once the atrocities advocated by it actually take place. He laments that “[a]t present, there is not a coherent and established framework in international law that prohibits hate speech as an inchoate crime” (p 255). The crime of incitement, it seems, has seldom been punished except ex post facto the atrocity.

Having no familiarity with international law or the ICC, I found the book a tough read, requiring great care to distinguish some very subtle differences in the defined terms and some very subtle nuances in the analysis. The way that the author defines his terms and then formulates his analysis using those definitions makes reading it very much like reading the Critique of Pure Reason.

The book is a very sharply focussed examination of the workings of the International Court and its treatment of the inchoate crime of incitement. As such, it would be most at home in academic law libraries with strong international criminal law collections.

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