Fixing the Law Governing the Relationship Between Hate Speech and Mass Violence
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FIXING THE LAW GOVERNING THE RELATIONSHIP BETWEEN HATE SPEECH AND MASS VIOLENCE CLE Credit: 1.0 Thursday, June 14, 2018 3:45 p.m. - 4:45 p.m. Bluegrass Ballroom II Lexington Convention Center Lexington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i Introduction ..................................................................................................................... 1 Setting the Stage ................................................................................................. 1 An Overview ........................................................................................................ 5 Conclusion ......................................................................................................... 26 THE PRESENTER Professor Gregory Gordon The Chinese University of Hong Kong Faculty of Law 6/F Lee Shau Kee Building Shatin, New Territories Hong Kong GREGORY S. GORDON is an Associate Professor at the Chinese University of Hong Kong (CUHK) Faculty of Law. He formerly served as Associate Dean (Development/External Affairs) and Director, Research Postgraduates Programme. Prior to joining CUHK, Professor Gordon was a tenured faculty member at the University of North Dakota (UND) School of Law and Director of the UND Center for Human Rights and Genocide Studies. He earned his B.A., summa cum laude, and J.D. at the University of California at Berkeley. He then served as law clerk to U.S. District Court Judge Martin Pence (D. Haw.). After a stint as a litigator in San Francisco, he worked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda, where he served as Legal Officer and Deputy Team Leader for the landmark "media" cases, the first international post-Nuremberg prosecutions of radio and print media executives for incitement to genocide. For this work, Professor Gordon received a commendation from Attorney General Janet Reno for "Service to the United States and International Justice." After his experience at the ICTR, he became a white-collar criminal prosecutor with the U.S. Department of Justice, Tax Division. Following a detail as a Special Assistant U.S. Attorney for the District of Columbia, he was appointed as the Tax Division's Liaison to the Organized Crime Drug Enforcement Task Forces (Pacific Region) for which he helped prosecute large narcotics trafficking rings. Also during this time, he was detailed to Sierra Leone to conduct a post-civil war justice assessment for DOJ's Office of Overseas Prosecutorial Development, Assistance, and Training. In 2003, he joined the DOJ Criminal Division's Office of Special Investigations, where he helped investigate and prosecute Nazi war criminals and modern human rights violators. Professor Gordon has been featured on CNN, the BBC, NPR, C-SPAN, and Radio France Internationale as an expert on genocide and war crimes prosecutions and has lectured on those subjects at the United Nations, the International Criminal Court, the U.S. Army J.A.G. School, the Harry S. Truman Presidential Museum and Library, the Nuremberg Trials Courtroom, and the United States Holocaust Memorial Museum. In 2015, his work was featured in an NPR broadcast on incitement to genocide narrated by Academy Award-winning actor Morgan Freeman. Professor Gordon has trained high- level federal prosecutors in Addis Ababa at the request of the Ethiopian government, as well as prepared prosecutors for the Khmer Rouge leadership trial at the Extraordinary Chambers in the Courts of Cambodia in Phnom Penh and trained lawyers and judges at the War Crimes Chamber for the Court of Bosnia and Herzegovina. His scholarship on international criminal law has been published in leading international academic i publications, such as the Columbia Journal of Transnational Law and the Virginia Journal of International Law as well as top American flagship law reviews such as the Ohio State Law Journal and the Oregon Law Review. He is one of the world's foremost authorities on incitement to genocide and his book Atrocity Speech Law: Foundation, Fragmentation, Fruition, proposing a new paradigm for international hate speech law, was published by Oxford University Press in 2017. Professor Gordon has presented his work at institutions such as Harvard Law School, Columbia Law School, Yale University, Georgetown University Law Center, Melbourne Law School and Katholieke Universiteit Leuven. He was the inaugural winner of the North Dakota Spirit Law School Faculty Achievement Award in 2009 and was invited to deliver the prestigious UND Faculty Lecture in 2011. In 2010, Professor Gordon co- wrote the U.S. Supreme Court amicus brief of Holocaust and Darfur Genocide survivors in the case of Yousuf v. Samantar. He also represented the International League for Human Rights at the International Criminal Court Conference in Kampala, Uganda. In 2012, he was the BBC World News live on-air television analyst for the announcement of the historic Charles Taylor trial verdict. He serves as a consultant for the International Nuremberg Principles Academy and is adviser on hate speech issues for the Sentinel Project on Genocide Prevention's Advisory Council. He is also on the Council of Advisors for the Global Institute for the Prevention of Aggression. ii INTRODUCTION Professor Gregory Gordon Excerpted from Atrocity Speech Law: Foundation, Fragmentation, Fruition "Those who can make you believe absurdities, can make you commit atrocities." --Voltaire1 I. SETTING THE STAGE In a broadcast during the week of April 6, 1994, at the beginning of the Rwandan Genocide, Hutu extremist station Radio Télévision Libre des Milles Collines (RTLM) falsely informed its listeners that Daniel Kabaka, a Kigali resident who happened to be a Tutsi, was a supporter of the Tutsi rebel group the Rwandan Patriotic Front.2 Within twenty-four hours, Kabaka's house was attacked with a hand grenade and partially destroyed. Kabaka broke his leg in the blast and could not flee. While the rest of his family escaped, his twelve-year-old daughter Chine remained with him, saying she wanted to die with her father. Kabaka lay in the rubble of his residence until eight gendarmes arrived. Chine tried to save her dad by helping him move into the home's courtyard. But the gendarmes thoroughly searched the premises, found Daniel and Chine, and murdered them. The following week, an RTLM radio announcer on his way to work noticed hundreds of unarmed Tutsis -- including numerous women and children -- seeking refuge in Kigali's Islamic Cultural Center. Within an hour, RTLM announced that there were "cockroaches" in the Center and falsely described them as armed. The next morning, the compound was encircled by soldiers and militia who attacked and slaughtered the Tutsi civilians inside.3 Broadcasts of this sort repeated themselves over the next ninety days until approximately 800,000 innocent victims had been murdered by the end of July. Sadly, this kind of media communication was hardly unique during the decades that preceded the Rwandan genocide -- RTLM's emissions merely representing the twentieth century's coda of genocidal discourse. About eighty years previously, the Ottoman propaganda weekly Harb Mecmuasi, "in order to justify [the Armenian genocide]," thoroughly prepared "the requisite propaganda 1 François-Marie Arouet (pen name "Voltaire"), Questions sur Les Miracles, in Œuvres Complètes De Voltaire, Vol. VIII, 691 (Chez Furne 1836). The actual quotation is "Certainement qui est en droit de vous rendre absurde est en droit de vous rendre injuste." This would translate somewhat differently but the above is the standard rendering of the quotation. See, e.g., Voltaire, Wikiquote, https://en.wikiquote.org/wiki/Voltaire (last visited Sept. 12, 2016) (noting that this is the "widely used paraphrase"); Richard Dawkins, NS Diary, New Statesman, Jan. 30, 2006, at 8 (quoting Voltaire using the common paraphrase). 2 Prosecutor v. Nahimana, Barayagwiza, & Ngeze, Judgment and Sentence, ICTR Case No. 99- 52-T ¶ (Dec. 3, 2003) [hereinafter Media Case]. 3 Id. ¶ 450. 1 material" in Istanbul.4 Such propaganda contributed toward the murder of 1.5 million Armenian citizens by, among other things, convincing the Turkish people of 'the need to 'rid ourselves of these Armenian parasites'" and identifying Armenians with "traditionally unclean animals such as rats, dogs, and pigs."5 And a couple of decades after the Armenian genocide,