Trump’s “re-tweeting” of inflammatory and unverified anti-Muslim videos and “incitement to genocide” in international criminal law

It happened this way in Germany, Cambodia, Rwanda, and countless other sites of genocide, ethnic cleansing, and mass persecution. The pamphlets, megaphones, and radio broadcasts came before the pogroms, murders, and forced relocations. The pamphlets, megaphones, and radio broadcasts came before the pogroms, murders, and forced relocations. And today, we have even more effective ways to reach millions of people at a time, as the president’s more than 43 million followers on Twitter can attest; the established media only magnify his reach.—Daniel Altman*

As Larry May explains in his book, Genocide: A Normative Account (Cambridge University Press, 2010), “[i]n international law, genocide has a specialized meaning that is not necessarily consonant with that of the public’s understanding of genocide, because it includes acts that do not involve mass killing.” To wit:

Article II: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group. 

Article III lists the following acts as punishable:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide. 

For our purposes, that is, in examining the possible criminal character of Trump’s “re-tweeting” of inflammatory and unverified anti-Muslim videos, (c) immediately above is germane. Incitement means “encouraging or persuading another to commit an offence.” May cites the Akayesu Trial Chamber for the two principal ways such incitement is understood in criminal law: “’Under common law systems, incitement tends to be viewed as a particular form of criminal participation, punishable as such,’ whereas ‘in most civil law systems, incitement is most often treated as a form of complicity.’ If incitement is treated merely as a form of complicity, then it may not be charge and punished in its own right.” Both the Genocide Convention and the more recent Rwanda Tribunal Statute favor the common law view. As May reminds us, “the hardest element to establish for the crime of incitement to genocide is mens rea [‘guilty mind,’ i.e., either the intention to commit a crime or knowledge that one’s commissive act or omissive act will result in a crime].” In our case, this means “[t]here is a desire to create in others a desire to commit a crime.” This rather stringent and somewhat awkward requirement is, as May says, “especially hard to prove, because in effect we must peer into the mind of two different people, or infer from their behavior what the mental states of two different people are [it also implicates a causal connection so as to be logically sufficient].” The ICTR’s [International Criminal Tribunal for Rwanda] Akayesu Trial states: “The prosecution must prove a definite causation between the act characterized as incitement … and a specific offence.” May points out that the Media Case Trial Chamber expressed a somewhat less stringent requirement, for “[T]he Chamber is of the opinion that the direct element of incitement should be viewed in light of its cultural and linguistic element,” thereby allowing what May terms “indirect forms of proof.” And here’s the most significant part as it applies to our—i.e. Trump’s—case: The Media Case Trial Chamber stated that “[i]t is the potential of the communication to cause genocide that makes it incitement.” This seems not to effectively eliminate the direct causation element, in that, in May’s words, “the crime does not require a successful instigation for prosecution.” The Appeals Chamber of the ICTR later more or less reinstated the “direct incitement” element in causal terms as such speech must “directly call for the commission of genocide.” As some have correctly noted, this still does not mean that incitement is necessarily tied to a commissive act as such, thus incitement need not result in genocidal acts for prosecution!

As May’s analysis proceeds to inform us, the above legal elements for incitement to genocide bring it within the class of “inchoate crimes,” “such as attempted murder, that do not require the completion of a harmful act in order form criminal liability to be assigned. [It just so happens that there are two books on one such category of these, “attempts:” R.A. Duff’s Criminal Attempts (Oxford University Press, 1997) and Gideon Yaffe’s Attempts (in the philosophy of action and criminal law) (Oxford University Press, 2010); May cites material from the former book.] The standard list of inchoate crimes includes attempt, conspiracy, solicitation, and incitement.” In all such cases, there may be sufficient warrant for punishment, but at a minimum, “[t]here has to be an anticipated harm that is foreseen.” May, after Duff, thinks incitement should entail a “causal element closely related to the intent element” as well as a notion of “explicit endangerment” that falls short of the actual commission or occurrence of the “primary harm.” This leaves incitement looking something like “recklessness rather than like a straightforward intent crime.”

One of May’s conclusions is that “on both deterrence and retributive grounds, the inchoate crime should be punished severely only when there [is] a high likelihood that harm might result from the act of incitement.” He furthermore notes the lag time that often exists “between when the racist hate speech is broadcast or printed and when the violence ensues,” a conceptual problem insofar as incitement “derives from the Latin word citare, which means to set in rapid motion.” I now quote in full a paragraph of May’s that completes much of his argument for clarifying the notion of incitement to genocide in international law:

“In my view, incitement makes the most conceptual sense when it is linked with its Latin root, namely, where a person’s actions begin a causal chain, and soon thereafter there is, or would normally be, a certain harmful result. In the case of incitement to genocide, the result, of course, is a series of genocidal harms. Incitement is not best understood as preparing the ground for harm, but rather as initiating a causal process. It is also to do so intentionally, although … the intention is only to take a risk, not to do that which is risked. And here is where the inchoate nature of the crime arises, for if one were to start such a causal chain by one’s words, spoken or written, and to intend that these words would have a certain result, then this is enough for incitement, as long as the so-called proximity condition is met, namely, the condition that states that the act must involve causation that is more than mere preparation.”

It seems confusing to highlight the “proximity condition” of this inchoate crime in as much as it need not “lead to completion in a harmful outcome.” May attempts to clarify this, however, in his final summary of the principal elements in the incitement to commit genocide:

“Incitement involves the intention to take certain actions that initiate a causal chain that is known to risk serious harm, but where the harm need not be intended, and in addition the harm need not be effected. Incitement is thus an inchoate crime in that harm need not result from the inciter’s action, but incitement is not like most other inchoate crimes in how the proximity test is to be met. There is a very limited sense in which preparation must be taken, in that the inciter must in fact do those things that, by strongly affecting others, risks causing these others to engage in harms. But this is not best thought of in terms of preparation because it is not as if the inciter need be planning to do things that those who are likely to be affected by his or her actions may cause, nor that he or she intends there to be a plan to produce these harms.

There will be degrees of incitement [….] [and thus the severity of punishment will hinge] on a secondary element, namely, whether the specific harm is intended or merely the result of recklessness or negligence. Incitement is thus what is often called a crime of specific or special mens rea. Incitement to genocide is thus to be understood as the kind of crime where there must be both the intent to do an act of broadcasting or publishing or public speaking in a highly prejudicial way about a group’s members, and where the risk of harm so created is at least known by the inciter.”

* Please see Daniel Altman’s article in Foreign Policy, “This Is How Every Genocide Begins,” November 30, 2017.