CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, March 5, 2012

Gordon on Incitement Law

Gregory Gordon - University of North Dakota

Gregory Gordon (University of North Dakota - School of Law) has posted Music and Genocide: Harmonizing Coherence, Freedom and Nonviolence in Incitement Law on SSRN.  Here is the abstract: 

Can singing a song constitute incitement to genocide? A 2009 decision by the International Criminal Tribunal for Rwanda (ICTR) in the case of Hutu extremist pop singer Simon Bikindi said it can. But in convicting Bikindi, it failed to apply, much less develop, the incitement law framework it had established, albeit in a piecemeal fashion, through a string of prior opinions (most notably in the famous 'Media Case'). That framework asks judges to consider the purpose, text, context, and relationship between the speaker and subject to determine if a speech constitutes criminal incitement. Critics have pointed to the test's piecemeal development, its supple contours, and the Tribunal's desultory application of it and proposed replacing it with an entirely new test. As African dictators have supposedly cited the ICTR framework to justify stifling legitimate dissent, such a drastic solution is necessary, they argue, to promote freedom of speech and prevent genocide.

 This Article acknowledges these concerns but proposes a middle-ground approach instead. Given doctrinal glitches in the proposed new tests, the existing framework should be preserved but elements of the new tests should be incorporated as 'evaluative factors' within the 'context' analysis. At the same time, additional contextual reference points (such as the outbreak of war and the personal history of the speaker) should be appended to the existing test. An entirely new element, 'channels of communication,' should be tacked on as well to help distinguish between written versus broadcast media (given that the latter is more effective at provoking imminent lawless violence). Similarly, as suggested by the Bikindi decision, two additional elements - temporality (was the speech uttered within the proper contextual time frame?) and instrumentality (was the speaker responsible for the speech's dissemination) - should be appended to the existing framework. Finally, an incitement-technique typology, which would explicitly recognize various indirect incitement methods (such as 'accusation in a mirror' and 'victim-sympathizer conflation'), should also be integrated into the analysis. This compromise approach will provide the necessary flexibility to permit nuanced incitement analysis while insuring greater degrees of normative coherence, free expression and, most importantly, effective genocide prevention.

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