FIXING THE LAW
Reform, Prevention & Punishment
Fleshing Out the Context Elements
of the Crime of Incitement
THE PROBLEM
Incitement jurisprudence is hindered by a poorly defined and confusing “public” requirement, as seen in the Kalimanzira case. But why do we even have a “public” requirement?
It has been argued that only ‘public’ incitement can stir up “uncontrollable anger and passion” (Timmermann). But why can’t “private incitement” whip up “uncontrollable anger and passion” just as easily as the “public” variety – if anything, close physical proximity to the speaker would arguably arouse more of an emotional response than being far removed in an enormous crowd or hearing a disembodied voice faintly crackling over radio airwaves.
THE SOLUTION
Eliminate the “public” element – and if there is a question of scale because fewer people were incited, then that should be reflected in sentencing, not liability.
There are also further steps that can be taken to improve the legal framework for adjudicating incitement to genocide. These include:
— The creation of a glossary of incitement techniques so the courts and the public can understand the many ways that incitement can take place, e.g., via direct calls, using euphemisms, making predictions, and asking questions.
— The development of the “context” element of incitement by dividing it into “internal” (examining criteria such as the speaker’s authority, background, and previous speeches) and “external” (examining criteria such as the political/social context, media environment, and audience characteristics).
— Improve the differentiation between incitement and instigation. Problematically, these two criminal modalities are often confused. Whereas “incitement” does not require that the target crime be committed (and thus there is no causal connection between the speech and the crime), “instigation” does require the target crime be committed (and that there be a substantial contribution between the speech and the crime).
