Atrocity Speech Law: Foundation, Fragmentation, Fruition

By Professor Gregory Gordon (Oxford University Press)

In June, CUHK Law Professor Gregory Gordon published “Atrocity Speech Law: Foundation, Fragmentation, Fruition”, a groundbreaking study on the law governing the relationship between hate speech and international crimes. The book, published by Oxford University Press (OUP) and with a Foreword by legendary Nuremberg prosecutor Ben Ferencz, is revolutionary in that it envisions a new paradigm for the law with its “Unified Liability Theory.” The current law is fragmented and does not function properly. But the Unified Liability Theory pieces the law together and makes all the parts work in relation to the other. So, for example, the speech crime of “incitement” (liability for speech before atrocity takes place) only applies to the substantive offense of genocide. Why should it not also apply to the horrible offenses of crimes against humanity and war crimes? It would under the Unified Liability Theory. Apart from fixing the relationship among the speech offenses, the book also proposes fixes to the individual speech offenses in themselves, for example, definitively removing causation as an element. The Chief Prosecutor for the International Criminal Tribunal for the former Yugoslavia, Serge Brammertz, has described the book as “The definitive source for prosecuting atrocity speech in international criminal law”.

Professor Gordon’s ideas germinated as a prosecutor with the International Criminal Tribunal for Rwanda (“ICTR”), 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, he received a commendation from Attorney General Janet Reno for “Service to the United States and International Justice.” After the ICTR, he continued prosecution work for the US Department of Justice and then served as Director of the Center for Human Rights and Genocide Studies for the University of North Dakota. In this capacity, he continued his scholarly focus on hate speech, publishing a series of influential articles on the topic. As he was transitioning to Hong Kong, OUP, the world’s top academic publisher, offered him a contract to write a book on this subject.

The ideas put forth in “Atrocity Speech Law” are already having an impact. The International Nuremberg Principles Academy, for which Professor Gordon has served as a legal consultant, is using them for a project titled “Prevention and Accountability for Hate Speech”, which seeks to find effective ways to monitor, prevent and punish hate speech in countries around the world. He recently presented his book at United Nations headquarters and at Yale University. Based on the UN presentation, the Office of the Adviser on Genocide Prevention has proposed organising meetings with UN policy-makers in Geneva, including the International Law Commission, to see about implementing Professor Gordon’s ideas into human rights instruments (including a proposed Convention on Crimes against Humanity by the International Law Commission). And, centering on the book, the Yale Genocide Studies Program is in discussions with Professor Gordon about creating a traveling workshop and related exhibition (using photos, text and other media) that could be presented at educational and policy institutions around the world.