Formulating a new atrocity speech offense : incitement to commit war crimes
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Loyola University Chicago law journal, Vol. 43, no. 2, Winter 2012, p. 281-316
Gregory S. Gordon
Since the time of the Pharaohs, certain military commanders have sought to demonize the enemy in speeches given to troops before sending them into battle. Depending on the words used by the commanding officer in these situations, such speech would not necessarily amount to “orders” given to the troops. In a genocidal context, the officer’s words alone might be actionable as “incitement to genocide.” But curiously, under the current state of international humanitarian law, the speech itself would not permit an incitement prosecution of the commander. This Article proposes filling the speech gap in international humanitarian law by creating a new inchoate offense—direct incitement to commit war crimes. The Article proceeds in five parts. Part II chronicles instances where both military commanders and prominent civilians have exhorted soldiers and militia to commit atrocities but the civilians’ use of such facilitating language was not punished as a violation of the law of war. Part III examines the existing law related to speech crimes in the mass atrocity context and its extremely limited scope in the current laws and customs of war and applicable treaties, including the Geneva and Hague Conventions. Part IV suggests ways in which incitement could be incorporated into the existing framework of both international humanitarian law and international criminal law. Finally, Part V will demonstrate that while the new offense may raise free-expression and operational concerns, it will not run afoul of military individual liberty norms or institutional prerogatives.