International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Fall 2017 Issue



The Hartford Guidelines on International Speech Crimes

Richard Ashby Wilson
By: Richard Ashby Wilson, Professor of Law and Anthropology at the University of Connecticut; Author of Incitement on Trial: Prosecuting International Speech Crimes

Armed conflicts and mass atrocities are usually preceded by a propaganda campaign in which public figures and opinion shapers foment ethnic, national, racial or religious hatred, and incite their followers to acts of violence. Since the Ancient Greeks, western criminal law has maintained that the person inciting the crime is as responsible as the perpetrator and yet historically, the international legal mechanisms available to interdict or punish inciting speech have been either meager or highly equivocal.

At the International Military Tribunal at Nuremberg in 1945-6, one Nazi propagandist (Julius Streicher) was found guilty of crimes against humanity and hanged, and another (Hans Fritzsche) acquitted, but later convicted in a West German national court. After Nuremberg, the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948) established the international crime of “direct and public incitement to commit genocide” in Article III(c), overcoming resistance from the United States delegation which harbored concerns about freedom of the press. However, incitement to genocide was not charged at an international tribunal for nearly another 50 years.

International courts face unique challenges when adjudicating international speech crimes such as direct and public incitement to commit genocide, and instigating crimes against humanity. The courts must balance freedom of expression, a right protected by international conventions, with the need to regulate potentially harmful speech and punish those who incite others to commit genocide or persecute members of a protected group. They must also determine the intentionality of the speaker advocating a crime, and in the case of completed crimes, ascertain the causal nexus between the expression and the crime.

Under the auspices of the Peace and Justice Initiative and University of Connecticut School of Law, a team of attorneys with expertise before the International Criminal Court along with academic researchers from law, linguistics and political science, convened in Hartford, Connecticut, USA, in 2017 to elaborate a set of Guidelines that would assist international jurists and policymakers as they confront public expression that is prohibited under international law.

Crucially, the preventative capacity of the international justice framework remains unrealized, as all indictments for incitement to genocide have come after a genocide has already occurred. We recommend that in the first instance, prosecutors indict for inchoate speech crimes in cases where the speech act in question clearly expresses the intention of the speaker to incite genocide or the persecution of a protected group. As with other inchoate crimes like attempt and conspiracy, these are tools to prevent the commission of grave crimes and therefore are conventionally charged in the preliminary stages of a deteriorating political situation. Under existing international criminal law, the inchoate crimes of persecution and other inhumane acts, along with direct and public incitement to genocide, are the most applicable to speech acts.

However, there are unresolved questions relating to the formulation of inchoate speech crimes in international criminal law. Speech crimes are a highly contested and unsettled area of international criminal law, and in particular, they are characterized by uncertainty over the inchoate status of incitement to genocide. The placement of direct and public incitement to genocide alongside other completed modes of liability in Article 25 of the Rome Statute seemingly converts it from an inchoate stand-alone crime (in which the speech act is the crime itself) to a contingent mode of liability, potentially requiring the commission of genocide before direct and public incitement can be prosecuted. Such a policy requires waiting until a genocide has occurred and undermines the preventive value of direct and public incitement. To remove this ambiguity and enhance the preventative function of the Court, the Guidelines recommend amending Article 25(3)(e) of the ICC’s Statute to read:

Intentionally, directly, and publicly incites others to commit any of the crimes in the Statute, thereby significantly increasing the likelihood of their occurrence. For the purpose of this provision it is not necessary that the incited crime(s) be committed or attempted.

At present, article 25(3)(e) of the Rome Statute refers only to direct and public incitement of genocide. The proposed amendment would see a form of criminal liability included in the Rome Statute covering not only those persons who urge others to commit genocide, but also those who call for crimes against humanity, war crimes and (potentially) the crime of aggression and where those calls are likely to lead to imminent lawless acts.  It resolves the current anomaly whereby direct and public calls for crimes such as extermination, rape, or torture, for example, are not criminalized per se.


Doctrines of inchoate speech crimes conventionally require that there be a likelihood that the speech act in question cause subsequent lawless action. Our provision requires that the incitement be conducted in a manner so as to “significantly” increase the likelihood of the commission of the crimes. This filter excludes petty “barstool” criminal advocacy which have no realistic possibility of prompting anyone to commit grave crimes. Here it is worth recalling that the ICC’s Statute claims jurisdiction over only “the most serious crimes of concern to the international community as a whole” and is complementary to national criminal jurisdictions.

Adjudicating speech crimes in a preventative manner presupposes an assessment that a speech significantly elevates the risk that an international crime will occur. Such predictive reasoning based on probability is inherently speculative and is often determined by prosecutors and judges on the basis of hunches and personal opinion, and this is why international tribunal judgments are often characterized by misleading metaphors that compare inciting speech acts to fire and conflagration, poison, viruses or to the “marketplace of ideas.”

We recommend a more rigorous risk framework to determine the likelihood that a speech act could cause an offence that is based on peer-reviewed social science. Recent social research has identified many of the key factors in mass persuasion. Distilling the social science findings, we can provide a checklist of 11 factors that are known to elevate the risk of violence, including:

  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 communication formats, from radio to television to Twitter.
  9. The speaker wields a monopoly on the means of communication or can censor and 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.

This list is not exhaustive, and additional elements may be added as knowledge improves. In themselves, none of these variables are causal in the conditio sine qua non sense, nor do they always denote uptake on the part of the audience. Social science research alone cannot determine a trial chamber verdict: each individual case will be decided on the prevailing international criminal law, the specific evidential fact pattern and the merits of the arguments of the parties. Nonetheless, identifying the leading conditions most likely to persuade an audience can assist pre-trial and trial chamber judges in assessing the likelihood that international crimes against protected groups will ensue.

Constructing a multi-factorial matrix out of the list above could guide prosecutors as they discharge their due diligence obligations under international law and assess the likelihood that an utterance by a politician or prominent public figure will have grave consequences. The matrix could be quantified, with each factor above given a rating from 1-10 based upon a qualitative evaluation of each element in the matrix. Prosecutors are advised to determine prior to any review the statistical threshold (e.g., 80%) required to merit an indictment.

International criminal tribunals need to return to the approach to incitement developed at Nuremberg that held Julius Streicher liable as an accomplice to wider crimes planned and perpetrated by the Nazi High Command, based upon his patently genocidal speech acts. We strongly advise prosecutors to consider indicting on the basis of inchoate crimes such as incitement to genocide and forms of liability for completed crimes such as complicity that do not require a high level of direct causation. By charging populist demagogues such as Vojislav Šešelj (ICTY) under theories of direct causation such as instigating, prosecutors are compelled to advocate an inaccurate account of the consequences of speech, and they are also less likely to persuade the court and secure a conviction. In most criminal law settings, it is better to be on the more secure ground of inchoate crimes and complicity, and to defend a moderate position effectively and successfully, rather than to grasp for a level of causation and responsibility that is out of reach.

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© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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