BOOK REVIEW – Incitement on Trial: prosecuting international speech crimes

[T]he man who prompted the deed was more guilty that the doer, since it would not have been done if he had not planned it.


Aristotle Rhetoric (2004:26)

By and large, there is not a great deal of social science research to support the claim that hate speech or inciting speech has a directly causal relationship to violence, and this mitigates against modes of liability like instigating/inducing/soliciting which include the elements of direct causation. There is, however, extensive empirical evidence indicating that denigrating speech has (often unconscious) conditioning effects on listeners and while not attaining the level of a sine qua non, may contribute to a set of conditions jointly sufficient to cause crime.


Incitement on Trial: prosecuting international speech crimes, by Richard Ashby Wilson, Cambridge University Press, 2017, Paperback $29.99, 356 pages, p. 17.

Professor Richard Ashby Wilson’s Incitement on Trial: prosecuting international speech crimes is an outstanding text on a frequently misinterpreted, if not ill-used, area of international criminal law – the crime of incitement. What distinguishes Incitement on Trial from many other texts on substantive international criminal law is that it is based in part on extensive original empirical research.

Before praise and criticism, reader beware: I have known Wilson since he was doing research for his book, Writing History in International Criminal Trials (another gem published by Cambridge in 2011), and had the privilege of participating with two other colleagues in a workshop conducted by Wilson as part of his field research for this text.

Another digression: the workshop. Wilson invited me and two experienced and highly regarded international criminal defense lawyers to participate in what I would characterize as a symposium. We were presented with a case study as a springboard for the discussions. Wilson expertly moderated with purposeful questions (no doubt standard for all who participated in similar workshops), logical follow-up questions, and sufficient space for the exchange of free-flowing ideas – all while not revealing where he stood on any of the legal issues discussed. The experience was interesting and thought-provoking; not the type of interview where the researcher is posing inane questions out of ignorance or is making comments in lieu of asking questions, or worse yet, trying to force answers as if engaged in a validation process – a check-the-box process to give fodder to a pre-ordained opinion. I was skeptical whether this process, however interesting, would yield any profit. When I got to Chapters 6 and 7 of Incitement on Trial, it all made sense. Not to get ahead of myself, but these chapters deal with the use (or current lack of adequate use) of social scientists as experts at trial and the value of conducting empirical studies in international criminal cases involving incitement as an inchoate crime or instigation and complicity as modes of liability.

Review  

Incitement on Trial

The title could not be more fitting. Wilson puts on trial those who apply (whether in charging it, defending against it, or adjudicating it) the crime of incitement before international(ized) criminal tribunals and courts.

Wilson starts with the premise that many national and international conflicts are preceded by organized or politically sanctioned speech laden with toxic language designed to inflame and motivate listeners to commit crimes against targeted groups out of ethnic, national, social, political, racial, or religious hatred. If indeed this is how it is – and it seems so as we can see from past events (Nazi Germany) and ongoing events (Myanmar) – then international criminal law should by now be settled in fixing criminal responsibility to inciters who directly cause or contribute to the commission of crimes as a consequence of sustained, targeted hate speech that is specifically designed to produce these crimes.

Wilson convincingly argues that the law is unsettled, its appreciation misunderstood, and its application misused. He shows that as an inchoate crime, incitement is often conflated or considered interchangeably with the mode of liability of instigation. Or confusingly, considered to require a direct link between the speech and proved crimes committed – as opposed to a pure inchoate crime, where there need not be any causal link to crimes committed by perpetrators based on the speech.

One of central themes of Incitement on Trial is that more clarity and appreciation is needed concerning incitement as an inchoate crime so that inciters are charged and held accountable before crimes start to occur based on the hate speech. In other words, incitement should be appreciated as a preventive legal instrument, and should be used as such – not as an after-the-fact crime or mode of liability.

This may be feasible with some international crimes, depending on whether incitement is considered as a substantive inchoate crime. However, when considering that for crimes against humanity one of the chapeau elements is that it be widespread or systematic, inchoate crimes are virtually un-chargeable, not to mention unprovable, before crimes have occurred. Wilson is mindful of this, as he is careful to point out that such is not the case with the crime of genocide. The crime of genocide (at least under the Convention on the Prevention and Punishment of the Crime of Genocide) envisages incitement to commit genocide (without completed acts) to be a substantive crime – and not a mode of liability, as it seems to have been relegated under Article 25(3)(e) of the Rome Statute of the International Criminal Court (ICC).

Incitement on Trial is packed with useful information with a wide range of source material. Though dense, it is written in accessible prose, eschewing complex construction of thoughts with Latin phrases and esoteric concepts that are often found in texts written by pure academics. It is divided into eight well-developed and focused chapters, tackling incitement as an international crime comprehensively and from multiple directions:

  1. Inciting speech in international law and social science
  2. Direct and public incitement to commit genocide: an inchoate crime
  3. Causation in international speech crimes
  4. Instigating persecution: the prosecution case against Vojislav Šešelj
  5. Metaphors, agency and mental causation in speech crimes trials
  6. Social research in international speech crimes trials
  7. The social science of inciting speech and persuasion
  8. A new model for preventing and punishing international speech crimes.

The first two chapters are general, setting a solid foundation for what is to follow. Chapter 3 is particularly interesting. Wilson excels in distilling what there is to know on causation, while offering rich authority for those who wish to dig deeper into this subject. He opines that not much attention has been paid to causation, copiously referencing, among others, James Stewart.1   See James Stewart, Overdetermined Atrocities, 10 J. Int. Crim. L. 1189-1218 (2012). 

Perhaps so, though I am not entirely convinced. Written judgments do not always express the inner-workings of judicial minds when deliberating on the facts, though it is also unclear how much actual deliberation is done by judges to earnestly find beyond a reasonable doubt any direct linkage from alleged speech to the alleged consequences (cause and effect) – as opposed to taking an impressionistic, almost anecdotal or metaphorical approach, devoid of the intellectual rigor required in assessing facts and ascribing responsibility.

Perhaps it is not a matter of a lack of appreciation of causation, but a lack of sufficiently credible proof – the kind of proof that is so convincing that a trier of fact would be willing to rely and act upon it without hesitation in deciding exceptionally important affairs. Some prosecutors tend to read too much into, and overly rely on, statements or passages in speeches (viewing them as smoking guns), while ignoring the reality that there may be a host of other reasons and intervening actions – unrelated to these statements or speeches – that could just as well have been the direct cause of the crimes in question. This overconfidence or overreliance by prosecutors in expecting inflammatory rhetoric to carry the day in establishing causation (essential in establishing instigation) in the absence of consequential linkage evidence can be fatal to their case – especially if the trial chamber is unmoved, as it should be, by the use of visceral metaphorical imagery as a substitute for proof.

For defense lawyers, causation (or the lack of provable linkage) is the bread and butter in every defense, save for alibi or mistaken identity (some other dude did it – as we would say at the Alaska Public Defender Agency). But proving linkage, especially where speech is claimed to be the direct (or even proximate) cause of actions that follow, can be quite challenging. Circumstantial evidence is not axiomatically persuasive or controlling – certainly not to the extent direct evidence can be. It must lead to the only plausible explanation – something not so easily shown, especially when there may be intervening circumstances that could account for the conduct claimed to have been the sole cause of the flowing criminal acts. Defense lawyers tend to zero-in on causation in sowing doubt: showing that the prosecution has not presented the requisite evidence and linkage and has not disproved that other causes or intervening events do not account for the crimes claimed to be the result of the inflammatory speech.

This leads me to Chapter 4, wherein causation is further examined through the prism of instigation in the Vojislav Šešelj case at the International Criminal Tribunal for the former Yugoslavia (ICTY). Here, Wilson mildly falters as he vainly attempting to make sense of this case.

Much can be written about the Šešelj case, though I am of the view that it is mainly useful as a pedagogical case study for judges on how a case of this kind should not be tried – certainly how a judge should not preside at trial. Šešelj from the very start ran a crude, and at times repulsive, rupture strategy. The Presiding Judge, Jean-Claude Antonetti, seemed so enamored with himself and his ability to preside over the proceedings, that he effectively allowed Šešelj to run the trial and in some perverse way, making a mockery of the ICTY. Judge Antonetti was effectively co-opted by Šešelj as co-conspirator in his rupture strategy. It would not be an exaggeration to say that Judge Antonetti played off Šešelj’s buffoonery, as if he were in cahoots with Šešelj’s avowed purpose to denigrate and destroy the ICTY as an international criminal tribunal founded by the United Nations Security Council (see Alexander Zahar’s Legal aid, self-representation, and the crisis at the Hague tribunal).

Having followed the proceedings, here are some personal observations. It was clear from the outset that the Office of the Prosecutor did not field its A-team; its strategic and tactical inexperience was apparent. Though, in fairness, dealing with Šešelj and Judge Antonetti together – as they fed-off each other’s egocentricity and behaved like a big-time wrestling tag-team – would have been a challenge even for the most gifted and experienced of prosecutors. But there were other problems, such as introducing expert testimony based, among other things, on suspect data and a questionable methodological approach (not to mention whether this expert was up to the task considering that he lacked some rather critical skills). All sorts of claims can be made that the prosecution did not have sufficient time to put on its full case or that it was hamstrung by some of the Trial Chamber’s rulings or that Judge Antonetti was not just cheerleading for Šešelj, but actually aiding and abetting his inappropriate antics and tactics. But this does not account for what seemed obvious to many observers: the prosecution failed to put on convincing evidence directly (not metaphorically) linking Šešelj’s speeches to any alleged crimes that followed when all facts and circumstances are considered. To this end, in trying to divine where the prosecutors may have missed the mark in making their case, Wilson does serve the reader with some useful insight from one of the Judges, Frederik Harhoff, on the expert testimony presented by the prosecution.

Speaking of metaphors, Chapter 5 convincingly exposes the reader to the use, overuse, and abuse of metaphors, primarily by the prosecution, as an emotive technique that, other than making a clever sound-bite or evoking visceral imagery, does little in advancing proof of incitement or instigation. This chapter ties into the discussion on causation, allowing the reader to view the power or lack thereof in the use of metaphors as a means of persuasion and the false sense of security they lend in instances where they are overly relied on to bolster weak evidence. This applies not just in cases where incitement or instigation are at issue, but in every criminal case – no matter the crimes charged. Metaphors serve a purpose, but are not a substitute for solid evidence.

In Chapters 6 and 7, Wilson postulates that much can be gained by the use of social science and social scientists as experts in proving incitement and instigation. His empirical research for Incitement on Trial lends credence to his views that judges could benefit by this sort of expertise – though, as his research shows, judges are reticent to accept reports and testimony from social scientists. Wilson fails to account for the questionable use of such experts at the international(ized) criminal tribunals and courts. The prosecution tends to employ in-house analysts who assist in strategizing, interviewing, drafting the indictment, and then preparing a report that – surprise, surprise – echoes the prosecution’s case. There is also legitimate criticism that experts are hired guns willing to tilt their findings and conclusions to the side that is paying them. Be that as it may, Wilson advanced good arguments for the use of social scientists, and more importantly, provided us with some guidance on how social scientists have faltered as experts and how we can learn from their errors.

Wilson wraps up in Chapter 8, wherein he recaps and presents his (new) model for preventing and punishing international speech crimes. This chapter is loaded with provocative thoughts and suggestions that are remarkably astute and insightful – perhaps because they are coming from a social scientist who is well versed in international criminal law, yet not shackled by the sort of rigid legal thinking that many legal academics tend to apply. Setting aside his suggestions (some of which I will address below), it was interesting to see how a serious social scientist legal concepts and issues and his approach to find solutions. This distillation process of facts, law, empirical research, etc., more than proves Wilson’s thesis that international criminal trials can benefit from social science expertise. He also provides a useful tool – a template of sorts on how social scientists could be used and challenged.

There are two points to highlight from this concluding chapter that merit more than a general passage.

The first point deals with one of the central themes of Incitement on Trial: the usefulness of social scientists in discerning context for attributing causation, by taking a boutique approach: having “regard to the effects of distinct genres of speech on the audience,” by applying “a multi-factorial approach to the consequence of political communication.” Wilson notes that recent research has identified key factors in mass persuasion and political speech – factors that could serve as a general checklist, which, in my opinion, is a vital starting point for prosecutors and defense lawyers. It is not a bulletproof list, but its persuasive value in establishing causation or the lack thereof, is an essential reference point not just for the parties, but also for judges. So, after all the hype, here it is:

  1. The speaker occupies an official position of authority.
  2. The speaker is perceived as credible by his/her audience.
  3. The speaker is perceived as charismatic by his/her audience.
  4. The speaker is adept at summoning up pre-existing cultural symbols and narratives to cultivate historical grievances.
  5. The speaker makes dehumanizing references, refers to past atrocities, and calls for revenge against the out-group.
  6. The speaker uses intense language replete with vivid images, graphic metaphors, and exaggerations.
  7. His or her speech is experienced as “powerful” by an audience.
  8. The message of the speaker is repeated across a variety of mass communications formats, from radio to television to Twitter.
  9. The speaker wields a monopoly on the means of communication and can censor or suppress information.
  10. The emotional state of the audience is affected by wider circumstances of insecurity and uncertainty.
  11. His or her speech arouses fear by labelling a direct threat and then identifying a distinct and foreseeably violent course of action that can be taken by the audience to remove the source of that threat.

The second point deals with Wilson’s contention that international criminal law needs to “get its house in order.” He offers three recommendations.

First, Wilson opines that there is a need to distinguish between material causation and legal causation, to “expressly demarcate material (or factual) causes from legal causes; i.e., those that are relevant for attributing criminal responsibility.” Contextualization would follow, with the Trial Chamber having “to consider the entire constellation of conditions jointly sufficient to result in a harm or injury, using a broad formulation of cause and effect.” Since cause and effect cannot always be grasped by sheer common sense, Wilson advises the use of social science. I am not entirely convinced that this is something new. It is not that social scientists are not used, it is that the parties often do not know how to use them. Judges can only benefit from social scientists when they apply their tools properly and are not driven to arrive at a contrived result that suits their paymaster. Here is where the social scientist needs to explain what tools were used, why certain methodologies were applied or ignored, what constraints were encountered, and the shortcomings or limitations of his or her conclusions.

Conscientious and experienced judges (not always the case at the international(ized) criminal tribunals and courts) are well versed in assessing the evidence before them. Having a social scientist telling them how to interpret, assess, and effectively weigh certain evidence that goes to the core of establishing the elements of a crime is to invite judges to substitute their assessment of the evidence with that of the expert’s. Is it not the function of the prosecution to marshal the evidence in a manner that contextualizes it? And are judges not permitted to question witnesses should they feel the need to clarify whether the harm caused by the physical perpetrator was the direct result of the impugned speech attributed to the inciter? In any event, were the parties to introduce social science expert testimony – something that is not uncommon – the Trial Chamber could, if it felt the need, engage its own expert.

Second, Wilson rightly notes how international criminal law has created “meaningless tests for the threshold of causation and the requisite level of contribution of the accused.” This is the handiwork of careless or unsophisticated judges who give little thought or have little appreciation for the confusion they cause by using terms interchangeably or with no meaningful distinction, such as in requesting that there be a significant contribution for one mode of liability, a substantial contribution for another, and a substantial effect for yet another.

Wilson suggests that this approach be abandoned and for the international(ized) criminal tribunals and courts to “utilize a single test of causation across all forms of criminal responsibility.” He gives preference for the rather straightforward approach Judge Fulford adopted at the ICC in Lubanga, which requires “a contribution to the crime which may be direct or indirect, provided either way there is a causal link between the individual’s contribution and the crime.” This seems sensible, except that he also favors adopting the ICTY Kvočka single test for causation that a contributing factor is one which is neither necessary nor sufficient but contributes to the crime, by increasing the likelihood of its occurrence. This effectively opens the floodgates for causation to be found with the slightest of evidence or based on malleable reasoning and opaque intellectual rigor. Wilson is correct in calling for uniformity. Considering, however, that judges come from different legal traditions with terms of art taking on different meanings, adopting a single test is more aspirational than realizable.

Third, Wilson believes that there is a greater need to use social science expertise. Again, this is sensible, though here again, some judges are unlikely to rely on this sort of expertise – even when properly presented. I personally am not opposed to the use of such expertise, provided there is equality of arms where the defense is afforded the resources to match that of the prosecution’s in securing experts, and provided that the perverse practice of allowing in-house prosecution staff (who are vested in the outcome of the case) to submit “expert” reports and testify as experts, is strictly prohibited. But aside from all of this, Wilson’s suggestion comes with significant consequences. Considerable time and resources are necessary for social scientists to conduct the sort of empirical research required to provide a balanced, comprehensive, and authoritative study. With cases already taking years to prepare for trial and with trials lasting even more years, not to mention the associated costs involved, it is unlikely that trial chambers will engage social scientists to conduct empirical research and studies – especially when, as previously noted, judges think they can manage quite nicely by exercising their authority to pose piercing questions and by using their common sense.

Appraisal

Wilson has authored a highly useful and out-of-the box treatise on the crime of incitement, and in no small measure, the mode of liability, instigation. Incitement on Trial makes an invaluable contribution to this field of international criminal law. Judges, prosecutors, defense lawyers, and civil party lawyers are well advised to not only consult his gem, but to take the time to study much of what is covered, including some of the rich material referenced by Wilson.   

 

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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