Criminalization of Incitement to commit crime under international criminal law

Several individuals or groups known as parties to the crime may play a distinct role in committing international crimes. The involvement of some of them in the commission of the crime is so close, direct, and active. These persons impose greater danger to society as a whole. The participation of others in the commission of international crime may be indirect by incitement and conspiracy. It supports and legitimizes acts of violence and Persecutory measures against victims. A review of mass crimes, both from the past and the present reveals that incitement and conspiracy generally precede and accompany mass crimes such as genocide, persecution, and extermination.

Scholars and practitioners have long debated the criminalization of incitement to commit crimes under international law. Some argue that such an offense endangers the fundamental right to freedom of expression as enshrined in human rights instruments. Thus, the range of incitement should be strictly limited to the crime of genocide, and its application should be approached with extreme caution. Others, however, argue that free speech is not an absolute right. They observe that freedom of speech is subject to such restrictions as are necessary in the interest of national security, safety, or public order. As a result, prohibiting speeches that advocate the commission of serious international crimes is especially justified to prevent or at least limit such crimes. Those who hold this position usually advocate for broadening the offense of incitement to include other core international crimes, such as aggression or crimes against humanity.

The concept of incitement is not defined in international instruments. Etymologically the word ‘incite’ derives from the Latin verb incitare, meaning ‘to set in rapid motion, rouse, stimulate. L.W. Sumner expresses incitement as ‘the idea of galvanizing someone into action by appealing to the passions rather than to reason’: Inciting to action thus contrasts with counseling, or advising, or persuading. It works by getting the subject worked up or agitated rather than by offering a convincing argument. In ICL, it is used in the context of genocide to designate the following activity: ‘directly provoking the perpetrator(s) to commit genocide, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication. 

Before the adoption of the Genocide Convention in 1948, Article 5(3) of the Tokyo Tribunal Charter and Article 6(3) of the Nuremberg Tribunal Charter had already alluded to the concept of 'instigation'. Incitement to genocide became a crime under international law in 1946, when the accused Julius Streicher and Hans Fritzsche were prosecuted before the International Military Tribunal at Nuremberg. While the phrase 'incitement to genocide' was not yet used, and the accused were instead prosecuted for crimes against humanity, the charges were based on acts that would now fall within the definition of incitement to genocide. Control Council Law No. 10 made no mention of instigation or incitement. However, this omission did not prevent the United States Military Tribunal in Nuremberg from recognizing, in the 'Ministries Case', that the incitement of hatred perpetrated by Otto Dietrich, a Nazi propagandist who held the position of Reich Press Chief and Secretary of Goebbels' Ministry, amounted to crimes against humanity.

The Genocide Convention, the ICTY, ICTR, and the Rome Statutes, as well as their respective jurisprudence, clearly recognize that incitement is linked to genocide as an independent crime under ICL. None of these instruments or institutions extends incitement to any other international crimes, be they aggression, crimes against humanity or war crimes. Incitement to any of the other international crimes –crimes against humanity or war crimes – must be followed by at least an attempt to be punishable. Article III(c) of the Genocide Convention, which prohibits only 'direct' and 'public' incitement to commit genocide, was proscribed. More than four decades later, the Security Council reproduced verbatim the relevant provisions of the Genocide Convention in Article 2(3)(c) of the ICTR Statute and Article 4(3)(c) of the ICTY Statute. Article 25 of the ICC Statute, which governs modes of liability, includes a specific paragraph that only applies to genocide. In this paragraph, incitement to commit genocide is prohibited.

The notion of incitement to commit war crimes is absent from all the major treaties governing the laws of war adopted after World War II. Indeed, neither the Geneva Conventions of 1949 nor the First Additional Protocol of 1977 refers to any such offense, while at the same time containing detailed provisions governing ‘grave breaches’ of these Conventions; these provisions explicitly create liability not only for those who are responsible for the commission of these ‘breaches’, but also for those who ‘order’ them. It should also be emphasized that neither the Charter of the Nuremberg Tribunal nor the Charter of the Tokyo Tribunal recognized that incitement to commit crimes against peace, crimes against humanity, or war crimes was a crime in itself. Incitement ‘could not be extended to war crimes, crimes against humanity, and aggression. ICL has only recognized incitement in the limited context of genocide. Therefore, incitement to commit other international crimes is not separately criminalized by international law.

Incitement to commit genocide, like conspiracy and attempted Genocide is an inchoate offense that confers responsibility on an individual for the mere act of provoking others to commit the substantive crime of genocide. Accordingly, incitement to commit genocide is not a mode of liability but possesses its own constitutive elements that are distinct from those of genocide. Thus, incitement to commit genocide is considered to have been committed even if the substantive crime of genocide is not completed. The potential of Communication to cause genocide makes it incitement.

The actus reus of incitement to commit genocide consists of directly and publicly provoking or encouraging individuals to commit genocide. Direct and public incitement to genocide is specifically criminalized by Article 3(c) of the Genocide Convention. Article 4(3)(c) of the ICTY Statute, Article 2(3)(c) of the ICTR Statute, and Article 25(3)(e) of the ICC Statute also indicate direct and public incitement to genocide as an inchoate offense. Incitement is ‘public’ when conducted through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication. Based on the earlier Akayesu case, the Trial Chamber in the Media case determined that the crime required ‘a call for criminal action to a number of individuals in a public place or to members of the general public at large by such means as the mass media, for example, radio or television. Dissemination of information via open-access Internet pages or emails addressed to a large number of individuals is also considered public incitement. This public character should be evaluated in light of the particular circumstances of the incitement, such as the place where it occurred and whether or not the audience was selective or limited. Thus, merely delivering specific private messages inviting individuals to commit genocide is not criminalized under ICL governing incitement. Under the travaux préparatoires of the Genocide Convention, the number of individuals targeted by inciters is not an element of the crime as such if the incitement is done in a public and direct way.

The requirement of directness is not easy to concretely ascertain. As the Trial Chamber in Akayesu said, ‘The direct element of incitement should be viewed in terms of its cultural and linguistic content. Indeed, a specific speech may be perceived as "direct" in one country but not in another, depending on the audience.. Simple ‘hate speech’ may not be enough; the incitement must be to commit genocide, although that call need not be expressed, so long as it is direct. Indeed, according to ILC Commentary, ‘the element of direct incitement requires specifically urging another individual to take immediate criminal action rather than making a vague and indirect suggestion. The ‘direct’ element of incitement to commit genocide aims at excluding merely ‘vague or indirect public statements and expressions that are not themselves used for provoking “Genocidal’ activities. While mostly direct and public incitement to commit genocide would be preceded or accompanied by hate speech, only the former, which calls for genocide, is punishable under ICL.

In the Rwanda Genocide, the genocidaire repeatedly chanted the words ‘let us exterminate them’. This evidence constitutes the expression of direct Genocidal intent communicated initially to, and later by, the principal perpetrators. Several other essential historical examples follow, such as the Nuremberg trial of Julius Streicher, where evidence introduced from one of Streicher’s articles published in 1944 combined both direct and indirect references to the destruction of the Jewish population. Specifically, Streicher used the word ‘germ’ about the Jews, those who spread ‘disease’, and the words ‘removal’ and ‘destruction’ concerning the cause and the carrier of the disease. The prohibition of incitement to commit genocide has crystallized into a norm of customary international law. Balancing freedom of speech and protecting against mass human rights violations is confirmed by prohibiting incitement as an inchoate offense only for the crime of Genocide. 

How incitement to commit genocide is regulated under the FDRE criminal code is left to the practitioner on the area.

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