[00:00:01.640] - Wesley
You're listening to Journal Injuries, a podcast about philosophy and cognitive science, where researchers open up about the articles they publish. I'm Wesley Buckwalter. In this episode, Shannon Fyfe talks about our paper tracking hate speech acts as incitement to genocide, an international criminal law published in the Leiden Journal of International Law. Shannon is an assistant professor of philosophy and a fellow in the Institute for Philosophy and Public Policy at George Mason University, specializing in international conflict and international criminal law. Hate speech is often accompanied by violence, but is there any difference between saying something hateful on the one hand and inciting violent crime on the other?

[00:00:45.180] - Wesley
The contribution of Shannon's paper is to help us understand this distinction and what it means for criminal prosecution under international law in cases of genocide around the world.

[00:00:58.320] - Shannon
The main point of this paper is to think about how we should understand really, really harmful speech in the context of mass atrocities, like genocide. The way I got into this, I studied abroad in East Africa when I was in College and I became really interested in the use of sexual violence as a weapon of war in the context of the Rwandan genocide. I then worked at the International Criminal Tribunal for Rwanda when I was in law school, not on the case I discussed in this paper, but on another joint trial of four military leaders.

[00:01:33.150] - Shannon
I got to look behind the scenes and see what some of the challenges facing international criminal law were, as well as some of the prospects for doing good. And I've been writing about issues related to mass atrophy crimes ever since this article actually came out of a seminar paper that I wrote during my first semester in graduate school for philosophy. In a course about hate speech, I was learning how to start a philosophy paper from a critique, and I read something for the course about hate speech during the Rwandan genocide, and I thought that the author got a lot wrong in her understanding of the law and in her way of conceptualizing heat speech in the context of genocide.

[00:02:16.060] - Shannon
So once I really got into the groove and philosophy, I couldn't understand why we let anyone go to law school without a background in philosophy. Most of the other folks I know who work on law and philosophy went the other way around, which usually means they end up teaching in a law school after they finished their law degree. But I'm really happy with the way that I did it, even though I know I would have done better in law school with a background in philosophy, but I really love teaching philosophy students, so I'm much happier with the way the direction in which I did this.

[00:02:51.500] - Shannon
I love having the tools to make strong conceptual arguments about a still developing area of the law, and I really love having the background, experience and understanding of the law that allows me to engage with practitioners and legal scholars as well as philosophers. I drag law school a lot, especially in front of my students, because I don't think that it provides a a lot of useful skills. Baby lawyers still have to be trained once they start working. And for the most part, I think law school in law school they don't engage enough with the interesting philosophical questions.

[00:03:29.320] - Shannon
Although I was lucky enough to have a philosopher for my first year criminal law professor. But I find that having the background and how the law works is crucial whether or not you go to law school, not just for the specific issues that I work on in international criminal law, but for everything from bioethics to political philosophy, I find that my background in each discipline, law and philosophy, makes me more nimble in the other discipline. So incitement is a word that we often hear not in a legal context.

[00:04:07.190] - Shannon
It has a really specific legal meaning that can differ depending on what jurisdiction you're in. But it's something that we hear commonly outside of the law, but within the law it's the crime of using speech to encourage or persuade someone else to commit a crime. One place that we've heard this phrase a lot in the US in the past few months is after the January 6 attack on the US capital. There are a lot of conversations about whether or not the former President could have been found to have incited the people who participated in the attack on the US capital.

[00:04:47.800] - Shannon
And as a general matter, we might think that has something to do with whether he was specific enough in directing his followers to commit crimes rather than just saying hateful things. So one of the challenges that I'll talk about today is this tension between when something constitute hate speech and when something constitutes incitement, which is a crime. In the US, hate speech is generally not a crime, but in general, what distinguishes incitement from hate speeches that you are in fact trying to encourage or persuade someone else to commit a crime.

[00:05:25.420] - Shannon
And so this brings up kind of one of the main challenges of the crime of incitement, which is that it is an in Kuwait crime. In general, crimes have to be completed in order for you to be charged with them. You can't charge someone with murder if the victim merely loses his leg but pertains his life. What you can charge them with is attempted murder, which is also an in coat crime. And these are acts that are taken toward committing a crime, but they're incomplete with respect to at least one act.

[00:06:00.120] - Shannon
One question involves the relationship between a person's statement purporting to get some on to commit a crime, and whether or not the crime is actually completed. And then another issue is the tension between free speech and incitement, figuring out when something is hateful, terrible, or just a dumb thing to say and when it is in fact, encouraging someone to commit a crime and therefore a crime itself. Distinguishing incitement from hate speech is a really tricky question, so sometimes it can be difficult to distinguish them, and sometimes it looks more like, well, hate speech and incitement can both be part of the same statement, but they aren't necessarily the same part of the statement.

[00:06:47.280] - Shannon
Incitement can include hate speech. But the important distinction to make is that incitement involves encouraging someone to commit a crime, and for our purposes it will be violent crime. So, for instance, if I say all Democrats are cockroaches who are trying to steal the election, I have engaged in hate speech toward a group of people. But if I further say to have fired up crowd in DC, all Democrats are cockroaches who are trying to steal the election, you should go break into the capital and stop them by whatever means necessary.

[00:07:21.570] - Shannon
Right now it looks more like I am inciting them to break the law imminently. And I am also saying something hateful because I am simultaneously calling them cockroaches. If I just say you should go break into the capital and stop the Democrats from stealing the election by whatever means necessary. Right now, this looks like incitement, but probably not hate speech. So in short, they can be part of the same speech act, and there are situations in which it's hard to distinguish between the two of them.

[00:07:54.970] - Shannon
But the advocacy part is what is crucial for identifying incitement. Okay, so that's what it is generally. But let's talk about how it can be prosecuted in different jurisdictions. In the US. We get a basic understanding of incitement law from 1969 case called US versus Brandenburg, and in this case, a leader in the KKK made a speech at a Klan rally on a private farm. Speech included remarks accusing the US government of suppressing the Caucasian race and other hateful sorts of things. A journalist and a camera person were at the event, and then parts of the event were later broadcast on local television, and Brandenburg was convicted of advocating violence under the Ohio criminal cynical ism statute which made illegal advocating crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.

[00:08:56.480] - Shannon
The Supreme Court found that this law was unconstitutional and constructed a new test for when political speech can be prohibited. So this is what we now call in the US of Brandenburg test, and it has two parts. First, political speech must be directed at inciting or producing imminent lawless action. The important words there are imminent and assessing kind of when something constitutes imminent and then lawless action. It can't just be kind of broadly something that might result in lawless action. It has to be directed at a particular kinds of lawless action.

[00:09:37.340] - Shannon
And then second, it has to be likely to incite or produce such action. So if you say something and it is your fervent intent to produce lawless action, but it's not likely to be understood in that way. And it just so happens that it results in lawless action. You're probably not going to meet this definition either. So again, the lawless action must be imminent, and also it does not actually have to produce the lawless action. It just has to be likely to incite or produce such action.

[00:10:10.300] - Shannon
In the UK and in many civil law countries, incitement laws broader as there's less concern about protecting free speech and heat, speech can be prohibited under more circumstances. In the UK, for instance, there's a distinction made based on whether or not a crime followed the alleged act of incitement. If no crime follows from the purported active incitement, then you can charge someone with incitement. But if a crime follows, then the individual is charged with the crime itself, either directly or indirectly. So incitement is only relevant then in the UK as a crime when there is no lawless action that follows.

[00:10:56.590] - Shannon
Now, international human rights law does not have criminal law provisions, but it really struggles to manage the tension between limiting free speech to prevent violence and providing for freedom of expression. Those are two really important aspects of human rights law, and they are not easily brought out of tension with one another. Some human rights bodies try to use a proportionality standard to assess when to infringe on free speech rights to prevent speech based harm, but the standard is obviously quite difficult to apply. And then, as we'll talk about now, international criminal law includes direct and public incitement to genocide as a punishable act.

[00:11:41.230] - Shannon
In that's the way that we are going to talk about it in this paper. That's what it is under the statute that applies to the International Criminal Tribunal for Rwanda at the ICC. It's not a punishable act. It is a mode of participation in the punishable act of genocide. The definition of genocide, contrary to sometimes popular belief, is not just is there something really, really terrible happening? The definition is the Commission of certain acts with the intent to destroy in whole or in part a national, ethnical, racial or religious group as such.

[00:12:21.850] - Shannon
And the acts include things like killing, causing serious bodily or mental harm deliberately inflicting conditions of life calculated to bring about the group's physical destruction, imposing measures intended to prevent births and forcibly transferring children to another group. Some of the basic challenges for prosecuting incitement to genocide are similar to those that have faced domestic jurisdictions already in prosecuting incitement. More generally, when does hateful speech become an encouragement for others to commit crimes and hear mass atrocities? And a lot of this is going to turn on an important element of a crime, which is the perpetrators intent.

[00:13:04.320] - Shannon
So most criminal statutes include an act element and a mental state and sometimes other elements like surrounding circumstances or causation. As an example, the crime of genocide has a list of acts that I already mentioned that can meet the act requirement, but it also has a mental state requirement. These acts have to be done with the intent to destroy in Holler, in part a group on the basis of national, ethnical, racial or religious identity. As such. Otherwise, these acts may be really terrible, but they don't constitute genocide.

[00:13:42.320] - Shannon
So figuring out whether someone was trying to persuade someone to destroy a group on the basis of that group identity marker is tricky. The core question here is, when does hate speech become incitement? Because even though there are some jurisdictions that are more willing to prosecute hate speech than the US is, for instance, there's always going to be hate speech that is, in fact permissible. Whereas incitement is a crime. The media case, which is the case that I use as an example to illustrate some of these questions about the tension between hate speech, preventing violence and free speech, is what I refer to as a media case.

[00:14:32.010] - Shannon
And this was the joint trial of three Rwandan media executives. Two were co founders of a radio station, and one was the editor in chief of a newspaper, and all three had purportedly use their platforms in ways that contributed to the genocide of to see people in Rwanda in 1994. Interestingly and so the reason why I used this case is because there haven't been that many prosecutions for incitement to genocide. And one of the reasons why this case is interesting is because there wasn't direct evidence tying any of these three media executives to physical acts of violence.

[00:15:13.930] - Shannon
What they were charged with doing was more like what happened with Striker after during the Holocaust. It was the use of of words. It was the use of these media platforms to create a climate that made us sound like they were not human that convinced people that uses were less than human. And then depending on which form of media we're talking about, there were acts that could have looked more like they were giving specific instructions to people to commit acts of violence rather than just contributing to the dehumanization of to see people.

[00:15:58.970] - Shannon
So this was a case that happened at the International Criminal Tribunal for Rwanda, which is an ad hoc tribunal that was set up by the UN Security Council as a way of trying people who participated in the Rwandan genocide was again created by the UN Security Council. It doesn't exist anymore. It serves its purpose of trying mostly really high up leaders who planned and participated in the Rwandan genocide. One other interesting feature of this court is that it was not located in Rwanda. It was located next store in Tanzania, which you might think has some benefits and some costs.

[00:16:48.520] - Shannon
There was less access for survivors of the genocide to participate in or view the trials. But arguably, there was less of a charged political climate in Arusha and Tanzania than there was in Rwanda when these cases started in 995, the criminal law is usually supposed to look at just what the perpetrator does. So in general, the criminal law is looking at whether or not a particular act occurred, but the criminal law doesn't change based on what other people did following a particular act. It doesn't change based on kind of how much psychological harm of victim experiences and usually sentencing doesn't change based on what a victim wants.

[00:17:46.010] - Shannon
Criminal law is supposed to be really explicitly aimed at punishing a perpetrator for what that perpetrator did and what their intent was with respect to that act. One way that we can use philosophy to help distinguish between the different kinds of crimes related to speech rather than other sorts of acts is Austin speech act theory. He distinguishes between locations which are acts of saying something locutions, which are acts done in saying something, and perlections which are acts done by saying something. We can think of more run of the mill hate speech acts as locations, and we could think of incitement as either locations or per locations in terms of categorizing incitement to genocide.

[00:18:39.070] - Shannon
We could think of incitement as a elocutionary act dependent upon the cooperation of the audience in order to be successful. If the mental state of a speaker is directed at inciting someone to commit genocide, then the proactionary act would be the attempted Commission of genocide by a hearer of the speech act. If the hero is not convinced to commit genocide, then the persecution at is unsuccessful. On one account, the intention based account on another account, the uptake account. If the here is convinced to commit genocide but still does not commit or attempt to commit genocide for whatever reason, then the Speaker's persecution ARY object is also not achieved.

[00:19:23.540] - Shannon
We can imagine someone on the radio saying all these are cockroaches, so you should exterminate them. The here must at least be convinced that they should participate in the extermination of the Tutsis and perhaps take steps to commit crimes. In furtherance of that end, the main challenge for using this model when we try to map it onto the law is that we can't really take up, take into account and evaluating the success or failure of the precautionary active incitement. The criminal law is supposed to be focused on the perpetrator and shouldn't rely so much about on whether or not the uptake occurs and whether or not the crimes are actually committed.

[00:20:05.530] - Shannon
And if we adopt the elocutionary view of incitement, then there are too many opportunities for luck to make it the case that even though someone performed the requisite speech act and had the requisite intent and there were the requisite that attendant circumstances such that they meet all of the elements of a crime of incitement, the fact that no crimes actually occurred as a result of their intent and their actions that would prevent them from actually being charged with that crime. And I think that's the wrong way to think about incitement, for example, to return to the media case.

[00:20:49.900] - Shannon
If a radio announcer is saying all these are cockroaches and you should exterminate them and to to hear this on the radio and say, oh, I am going to go get my machete that is under my bed that I am ready to use to exterminate my neighbors that I happen to know or Tutsis. And then for some reason the machete is rusted and it's raining outside, and then they decide not to actually exterminate their Tutsi neighbors. Right. They have been their mindset has been changed by hearing the radio announcer dehumanize the toes right as the hate speech part of the statement and then encourage them to exterminate their neighbors.

[00:21:45.440] - Shannon
The incitement part of the statement. I don't think we would want to say that the radio announcer wasn't responsible for having committed the crime of incitement just because it started raining. We might think that the elocutionary account would be more useful in helping us think about incitement. Unfortunately, it also has problems. Elocution help us understand incitement in terms of intent. Is this a better way to understand the crime? Unfortunately, not because of how the law works in a bunch of places. Weirdly, the category of incitement actually gets erased if we think about it as an elocutionary act.

[00:22:32.700] - Shannon
The British legal approach to incitement actually supports the idea that there is no such thing as incitement as a precautionary act. Incitement is an elocutionary act on the British model where you are only charged with incitement if there is no uptake and there's no successful completion of the ultimate crime. But weirdly, if the completed crime occurs becomes a precautionary act because the inciting speaker becomes an accessory to the crime rather than a mirror inciter. While incitement is an elocutionary act, it is dissolved and becomes a precautionary act if uptake occurs and the crime is actually committed.

[00:23:22.850] - Shannon
So while we might think that this solves the problem and that it is focused more on intent than an uptake, the problem with the way the law works is that the uptake still matters. So if you intend to incite someone to do something and they actually do it, then you now have just done that thing you have now committed that crime. So for example, in the media case, this would mean that the defendants should only have been charged with genocide or conspiracy to commit genocide based on the ICTR assessment of their level of participation in the crime and not with incitement to genocide.

[00:24:03.460] - Shannon
So you would just be charged as an accessory to the crime of genocide or with genocide itself rather than as someone who is inciting someone else to commit that particular crime, you would be charged as an indirect participant in the ultimate crime. Now we still can distinguish this further from the idea of genocidal participation speech, and this is where you could still involve a speech act. But where what you are saying is more specific, such that you can be seen under the law as a direct participant in a crime.

[00:24:41.070] - Shannon
So if you are providing more specific details about particular people to target and perhaps providing the means with which to target them, then you could be seen as someone who is directly participating in the crime of genocide in the form of instigation rather than just as an accessory or an indirect participant. So if a radio announcer said something like altitudes are cockroaches and we should exterminate them. And here is a list of ten toes with their addresses and the code for the lock box in which we have all kinds of machetes and other weapons.

[00:25:27.280] - Shannon
And here are the hours during which these people will be home. That is at least conceptually distinguishable from being an accessory to a crime that would put you in the ballpark of being a direct participant in the crime of genocide. Again, conceptually, they're distinct. Figuring out where the line is in practice between kind of a broad call to arms incitement versus direct instigation is tricky.

[00:25:58.060] 
I.

[00:26:00.910] - Shannon
Don'T think I want to argue that we should get rid of the crime of incitement to genocide, but I think the upshot of the view is to make it clear what the limitations are of relying on incitement to genocide as a way to either broadly prevent genocide and harm or as a way to handle a global uptick in hate speech, both as an intrinsic harm and is something that is contributing to further greater harms, like genocide. Right. And so I think sometimes international criminal law is seen as this great savior that is going to prevent mass atrocity crimes from happening.

[00:26:45.460] - Shannon
And the fact that incitement to genocide is part of that is a way that people can think about. Oh, well, we can just prevent people by having this as an option for prosecution. We can prevent people from engaging in this kind of speech. And I think it's pretty clear that at least from the vantage point of international criminal law, it's not serving the kind of purpose that we might want it to serve. That's not to say that domestic criminal legal systems couldn't be doing some of this work to stop political leaders in their tracks, or that civil society can't use some of these tools to think about preventing hate speech and the harm that comes from it.

[00:27:29.320] - Shannon
But I think really the upshot is to show the limitations of relying on incitement as this kind of separate category of what international criminal law can do and say in general, once the case gets to an international criminal court or tribunal, a person who would be in the docket there, there's already likely going to be so much evidence of other things that they have done other than just inciting other people to commit acts of violence that it's going to be much more useful and efficient to just try people with indirect or direct participation in the ultimate crimes rather than just the crime of incitement.

[00:28:14.720] - Shannon
We've talked about the way that speech act theory could help us think about hateful or incitement based speech acts in the context of an ongoing or recently ended conflict. But what about speech act theory helping us think about genocide denial, perhaps many years following an active conflict situation, and speech act theory could help us think about liability for genocide denial as well. So some States have adopted genocide denial legislation for similar reasons that incitement law exists, the need to outlaw speech that is intended and likely to result in the Commission of crimes, and in these cases where tension perhaps remains high.

[00:29:04.990] - Shannon
The idea is that someone publicly denying genocide might result in immediate violence. The previous is discussion of speech act theory and incitement, but this presumes a particular purpose of the legislation and a particular climate in which the uptake of the speech act would be likely to result in violence. At the writing of this article, I claimed that if Germany outlawed elocutionary acts of Holocaust denial as genocidal incitement speech, there must be felicitous conditions in place for these acts to succeed as proactionary acts of completed crimes genocide.

[00:29:44.380] - Shannon
It wasn't clear that that was the case. The context was unlikely to lead to successful prosecution, ARY acts of hatred, or even disturbance of the public peace. But given the rise of the far right in Europe and in Germany in particular over the past few years, I'm not sure that I would actually still defend this view. We could also see the Germany laws is elocutionary acts of harm in and of themselves rather than attempts to incite genocide. But these are not the reasons given for the laws.

[00:30:15.410] - Shannon
Despite the fact that Germany tends to be more willing to outlaw speech that offends someone's dignity than we do in the US. I actually received several emails from people who were, in fact genocide deniers themselves, reaching out to see if I could help with their legal cases in Germany and elsewhere. And because they thought that I had written an article defending genocide deniers, that is certainly not the point of this article. It's really just to consider the relationship between these laws and incitement laws and speech act theory, and to see if we could understand what could justify this sort of limitation on freedom of expression, which again, it's hard for us to imagine having genocide denial laws in the US because we have a stronger commitment to free speech ideals than a lot of Europe.

[00:31:17.720] - Shannon
But if we think of the aim of genocide denial legislation as being to prevent harm, then we do need to think about the Felicity conditions that would have to exist for someone denying the existence of genocide to actually result in an outbreak of violence. And again, at the time, I did not think that was the case in Germany. I think I might I might be willing to revise that view. Now, I'm not working specifically on issues in this paper right now. I'm interested more broadly on issues related to prosecutorial discretion and international criminal law and the issues of hate speech more broadly.

[00:32:00.870] - Shannon
But I think what this paper showed me and hopefully can continue to be useful is to really show the limitations of international criminal law and addressing some of the tensions that we are continuously finding to be so challenging in our domestic legal systems. So I really think that we're research on this and kind of practical solution should go on. This is in domestic legal systems again, actually, in cases like the January 6 attacks with authoritarian regimes on the rise, I wonder if domestic legal systems will take these events more seriously and try to establish responsibility for leaders rather than the low level perpetrators exclusively.

[00:32:48.420] - Shannon
And if what happened in the US is any indication, unfortunately, that seems unlikely.

[00:32:58.490] - Wesley
That'S it for today's episode. Funding in part was provided by the Institute for Philosophy and Public Policy at George Mason University. Visit our website at Journal Entries Fireside FM for more information about Shannon Five her work, some of the resources mentioned on today's episode.