Opinio Juris

I am indebted to Professor Gregory Gordon not only for his comments now, but for his own published work on incitement to genocide, and for fruitful debates that we are continuing here. As he knows, I disagree with his contention that the ICTR jurisprudence has identified or even “gleaned” as he puts it, a four-part test for incitement to genocide. The section of the “Media” judgment from which Gregory gleans his test [Nahimana or “Media” judgment, paras 1004-1015] is simply a rambling discussion of “general principles” that “emerge from the international jurisprudence on incitement to discrimination and violence [and] serve as a useful guide to the factors to be considered” in defining incitement to genocide. The decision lists three principles: purpose, context, and causation.

Under “purpose,” the judgment conflates purpose with intent, mentions hate speech cases only (not incitement to genocide cases), and completely ignores the Genocide Convention’s specific intent requirement, which makes the question of “purpose” moot, in my view. One point on which the jurisprudence is clear is that the inciter to genocide must have the specific intent to bring about genocide. The next “general principle,” “context,” is discussed in three disjointed paragraphs. [1004, 1005, 1006]. The first one refers to historical context, i.e., previous violence, the second notes that courts may use context to ferret out a speaker’s concealed intent, and the third discusses considerations for and against restricting speech in the jurisprudence of the European Court of Human Rights. Again, there is no reference to incitement to genocide. Finally, under “causation,” the judgment finally mentions incitement to genocide, and notes that the crime carries no causation requirement.

Gregory notes that the ICTR’s jurisprudence has given examples of discourse “falling between [the] two extremes” of historical research and news reporting, on the one hand, and “explicit calls for violence” on the other. That’s true, but that shows only that the ICTR has correctly identified the two (obvious) ends of the spectrum. The necessary task, which the ICTR did not accomplish, is to distinguish between adjacent points along the spectrum: between hate speech and incitement to genocide.

It is no surprise that the Canadian Supreme Court did not apply the four-part test at all, much less “explicitly and systematically,” since it is not in the jurisprudence. I take Gregory’s point that a Canadian appeals court seems to have run off the rails when it understood Mugesera’s November 1992 speech to be about “elections, courage, and love,” but it is worth noting that there was fervent debate about how to translate the speech from the original Kinyarwanda, which made room for expert disagreements about its meaning. Also, even if three other Canadian courts reached the correct conclusion, criminalization of speech is such a delicate, dangerous, and important operation, in my view, that it must be rigorously explained.

Just two final points. I didn’t say (or didn’t intend to say) that since seventeen months elapsed between Mugesera’s speech and the Rwandan genocide, the speech cannot have been incitement to genocide. What I meant to argue is that some length of time would be too long, making the connection between speech and genocide too attenuated for criminal responsibility. For this reason, it is more logical to ask whether a speech created a reasonably possibility of genocide when the speech was made, than whether the speech influenced a genocide that took place much later.

Finally, Gregory argues that my reasonable possibility test is at odds with the inchoate nature of the crime, and that the test “opens a conceptual fissure” that might improperly admit a causation requirement. On the contrary, the reasonable possibility test allows for incitement to genocide to be identified (and prosecuted) whether genocide ensues or not.

In sum, we agree on the goal of prosecuting incitement to genocide vigorously while protecting speech as much as possible. The only question is precisely how to accomplish this, if the law – that blunt instrument – can manage such an exquisite balance at all.

[Gregory Gordon is Professor of Law, University of North Dakota School of Law.]

I would like to begin by thanking Opinio Juris for inviting us to have this important discussion here about the crime of direct and public incitement to commit genocide. I would also like to congratulate Susan Benesch on her excellent article regarding this verbal harbinger and prerequisite of mass atrocity. Professor Benesch provides a much needed exploration of the more complex facets of incitement that will afford jurists, advocates, and would-be offenders greater clarity in assessing the process by which permissible speech corrodes into forbidden exhortation.

But I cannot share in Professor Benesch's conclusion that the crime of incitement remains "alarmingly" ill-defined. As I point out in my articles A War of Media, Words, Newspapers and Radio Stations: The ICTR Media Trial Verdict and a New Chapter in the International Law of Hate Speech, 45 VA. J. INT'L L. 139, 150 (2004) and From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework, 98 J. CRIM L. & CRIMINOLOGY (forthcoming June 2008), jurisprudence from the Rwandan incitement prosecutions has gleaned four criteria through which speech content regarding race or ethnicity can be analyzed as either legitimate expression or criminal advocacy: (1) purpose; (2) text; (3) context; and (4) the relationship between speaker and subject.

With respect to the "purpose" criterion, this jurisprudence has provided some examples of legitimate objectives: historical research, dissemination of news and information, and public accountability of government authorities. At the opposite end of the spectrum, explicit calls for violence would evince a clearly illegitimate purpose. The International Criminal Tribunal for Rwanda has given examples of discourse falling between these two extremes, including permissible speech focusing on ethnic animosity but geared toward raising ethnic consciousness, not provoking ethnic violence.

The "text" criterion, which entails a rigorous parsing of the words themselves, helps further reveal the purpose of the speech and provides an important piece of the contextual puzzle. The "context" criterion, arguably the linchpin of the entire analysis, mandates an examination of the circumstances external to and surrounding the text so that its true significance can be divined. This includes situating the words and their utterance within the relevant linguistic, social, economic and historical framework. In applying this criterion, we must, among other things, ask whether the speaker embraced the views espoused or distanced himself from them. We also have to consider whether the speaker is using code words or indirect means of inciting the audience in a way that will be grasped by listeners at that time and place.

Finally, the case law instructs the finder of fact to examine the relationship between the speaker and the subject. According to this part of the test, the analysis should be more speech-protective when the speaker is part of a minority criticizing the government or the country's majority. In all due respect, the application of this four-part test certainly calls into question Professor Benesch's conclusion that "a mere racist could be convicted of a crime tantamount to genocide, and speech may be unduly and dangerously restricted."

Still, Professor Benesch refers to a poorly reasoned intermediate court decision in the Léon Mugesera case, subsequently overturned by the Canadian Supreme Court, to illustrate how "alarmingly" ill-defined the crime of incitement remains. In addition to being reversed by the Supreme Court, that decision was at odds with two lower court decisions finding Mugesera's speech constituted incitement. The decision's interpretation of Mugesera's speech as being about "elections, love and courage" is instantly discredited by the language of the portions of the speech at issue. For example:

You know there are 'Inyenzis' [cockroaches] in the country who have taken the opportunity of sending their children to the front, to go and help the 'Inkotanyis' [Tutsi warriors, fierce fighters] .... Why do they not arrest these parents who have sent away their children and why do they not exterminate them? Why do they not arrest the people taking them away and why do they not exterminate all of them? ... [We] must do something ourselves to exterminate this rabble.... I asked if he had not heard of the story of the Falashas, who returned home to Israel from Ethiopia? He replied that he knew nothing about it! [I] am telling you that your home is in Ethiopia, that we will send you by the Nyabarongo so you can get there quickly'.... Another important point is that we must all rise, we must rise as one man ... if anyone touches one of ours, he must find nowhere to go.

Of course, the Canadian Supreme Court engaged in the kind of rigorous exegetical analysis necessary for evaluation of incitement allegations and included a contextual examination of the term "Inyenzi" as well the murderous metaphoric significance of transporting Tutsis to an ethnic-stereotype "homeland" via a non-navigable river traditionally used to dispose of corpses after ethnic massacres (even though it did not explicitly and systematically apply the four-part test). Thus, when seen in the larger context, the intermediate court's decision represents a sui generis aberration in a string of decisions that had no difficulty finding Mugesera's words constituted incitement. Such an anomaly is certainly not evidence of an "alarming" definitional deficit. (Professor Benesch comments that Mugesera's speech preceded the Rwandan genocide by too long -- seventeen months -- but she ignores the essential point, made in the Canadian decisions finding incitement, that the speech itself was preceded and followed by large-scale ethnic violence – that was the context which permitted a finding of incitement.)

Nevertheless, as a solution to this perceived problem, Professor Benesch proposes a brand new test -- that a speech be considered incitement to genocide if there is a "reasonable possibility" that genocide can occur when the speech was given. Although Professor Benesch acknowledges that causation has been rejected as a requirement for establishing incitement, I am afraid her proposed test creates enough of a conceptual fissure to let causation slide in through the back door. I submit that a retrospective actuarial assessment of the prospects for genocide is at odds with the fundamentally inchoate nature of the incitement crime. That an inchoate crime is committed prior to, and independently of, the object crime is axiomatic. The main purpose of punishing inchoate crimes is to allow the judicial system to intervene before an actor completes the object crime. The crime carries such a high risk for society that it must be punished without reference to subsequent acts, if any, of genocide. The crime is complete when the words are spoken in the proper context. And while it is true that incitement has never been prosecuted without a subsequent genocide occurring, adopting a test which would tend to perpetuate that pattern would needlessly cabin incitement law, which I believe should be used for its intended function -- pre-atrocity deterrence, as opposed to mere post-atrocity punishment.

That said, the likelihood of subsequent violence given the circumstances surrounding a speech and the mental perspective of its listeners indirectly factor into the contextual analysis already called for in the law's current iteration. Accordingly, the prongs of Professor Benesch's six-part test do a wonderful job of fleshing out the existing four-part test. And so I view her analysis as an invaluable addition to incitement law.

In fact, I think it important to acknowledge that the analytic framework for incitement law is still developing. As I point out in my articles, the ICTR Media Case does not even explicitly set out a four-prong test – I argue that the test should be further refined to include four prongs, instead of what is formulated as two (purpose and context – although, as I indicate, the ICTR does actually engage in the analysis of text and relationship between speaker and subject without explicitly acknowledging it). And as I recognize above, the Mugesera Supreme Court decision was not sufficiently disciplined in its analysis to apply the test in a systematic, step-by-step way (although it does ultimately cover the essential components of the test). I also lament in my articles that the existing case law does not go far enough in identifying different types of incitement (such as "accusation in a mirror," among others) and so I believe Professor Benesch's contribution is timely and vital. I merely propose that her six-prong test be integrated into incitement law's existing framework, which has been growing organically. In short, there is no sense in throwing the proverbial baby out with the bath water by adopting a new "reasonable possibility" test, which would likely lock incitement into its traditional role of retrospective punishment device and retard its recent evolution toward prospective deterrence mechanism. We must vigilantly protect free speech whenever and however we can but never at the cost of laying the groundwork for another genocide.

Professor Mark Drumbl has put his finger on a key conundrum: that early, “entrepreneurial” speech offers the best opportunity for genocide prevention because it is the speech that primes a society for genocide, but it is also far more difficult to define than blatant incitement, uttered on the brink of genocide. The problem was beautifully captured in metaphor by a witness at the ICTR’s “Media” trial, who said that the notorious radio station RTLM had “spread petrol throughout the country little by little, so that one day it would be able to set fire to the whole country.” [Mugesera or “Media” judgment, ¶ 436]. As the witness implied, the crime that matters most is spreading the petrol, not striking the match. I wrestled with this, and constructed a definitional model that captures the later drops of petrol, but not the first ones. Incitement to genocide must be limited to speech that calls for genocide, albeit in coded language, and it must be distinguished from hate speech, which is not an international crime. Wibke Kristin Timmerman has suggested that hate speech become an international crime, but I don't agree - at least not for prosecution by international criminal tribunals. Hate speech is criminalized quite differently in various bodies of municipal law, often in idiosyncratic response to national history. International criminal law should not attempt to supplant this, in my view. And in response to Professor Chimène Keitner’s question, I would not argue for a customary international law prohibition against incitement to genocide, since a customary norm would likely be imprecise, and subject to the usual debate over when it has crystallized. Incitement to genocide should be clearly defined in international criminal law as the extraordinary crime that it is.

I was disappointed that the appeal decision in the Media case seems to set the threshold higher than I suggest, by finding that only RTLM broadcasts after April 1994, when the genocide began, constituted incitement to genocide. The appeals panel did not make it clear, however, whether it imposed this limitation simply for lack of evidence that the pre-April broadcasts “contributed significantly to the commission of acts of genocide” or for analytical reasons.

I share Mark’s skepticism that courts and tribunals will prosecute before a genocide takes place, and I agree that other methods, such as “information intervention” like radio jamming, have a much better chance of preventing or at least limiting genocide. Chimène suggests that before my test can be used for ex ante interventions, one would have to explain how that would work. When could state sovereignty be breached by radio jamming, who would identify incitement to genocide, and so on? Chimène is quite right. I admire the proposal that Jamie Frederic Metzl outlined in his article "Rwandan Genocide and the International Law of Radio Jamming," as well as his arguments that the end of the Cold War removed some longstanding obstacles to such relatively low-cost, high-tech humanitarian interventions, so I punt to him. Metzl found it important, notably, that “a relative consensus can be maintained regarding the international definition of incitement.”

The criminal law should not be left out of the picture even if it cannot prevent genocide, as Mark points out, as it also has important expressive and didactic goals. At their best, international tribunals and courts take part in the contemporary effort to understand how and why atrocities are committed. So tribunals should focus not only on the defendants who bear great criminal liability and responsibility, but also on the crimes that did the greatest damage. Defendants should be prosecuted for the acts they committed that contributed to bringing about genocide and other atrocities – more than for the acts that didn't really make much difference, or that must be stretched to fit a criminological template. For example, civilian political leaders should be prosecuted for conflict entrepreneurship, rather than for civilian superior liability, which is often an attempt to adapt command responsibility to a civilian context where it inherently doesn't apply. This is why tribunals should focus on speech as a crime – difficult though that is – as the ICTR continues to do in the trial of the pop star Simon Bikindi, and as the ICTY is now doing in the trial of the propagandist Vojislav Seselj.

Chimène also asks how my reasonable possibility test compares with other criminal laws tests regarding probable consequences, and I cannot yet answer adequately – that useful question is now on my list for future inquiry.

[Chimène Keitner is Associate Professor of Law, UC Hastings Law School.]

I’m delighted to join this conversation about Susan Benesch’s analysis of the international crime of incitement to genocide. As Susan’s title indicates, she seeks to distinguish this crime from the exercise of free speech rights guaranteed under U.S. law. Viewed in this light, her project forms part of an ongoing dialogue about the interaction between national and international criminal law. Below, I briefly summarize my understanding of Susan’s argument. I then identify two questions for further discussion in this forum and beyond.

Susan is concerned primarily with “major genocides with high degrees of civilian participation” (494 n.40). She observes that, historically, such genocides have been “carried out by state employees, albeit often aided by civilians” (495). Based on this observation, she characterizes incitement to genocide as “speech in the service of the state” (id.). Even “free speech devotees” (id.), she argues, should be loath to protect this kind of speech. However, the Genocide Convention does not provide a sufficient basis for differentiating between criminal speech and protected speech. Susan’s article aims to fill this gap.

Susan sets out to craft a definition of incitement to genocide that accounts for its central role in conditioning people to commit and accept violence (498–500). She endorses a constructivist view of genocide, and rejects “primordialist” accounts of identity-formation that, in her view, “excuse[] the international community from doing much to prevent the next massacre or genocide” (501). I found this part of the article intriguing, as I have spent a great deal of time puzzling through similar issues in the context of my study of nationalism. (See especially Chapter 5 of my book, THE PARADOXES OF NATIONALISM: THE FRENCH REVOLUTION AND ITS MEANING FOR CONTEMPORARY NATION BUILDING).

My sense is that Susan talks about the sociological foundations of genocide because she wants to convince skeptical readers that criminalizing incitement should not be out of the question, even though it involves criminalizing speech. Susan points out that U.S. law criminalizes speech that is “likely to lead to imminent lawless action” (495). However, she finds this test too narrow in the context of genocide, because “[e]ven a small risk of genocide is too much” (495). Instead, she proposes a six-prong test to “aid in identifying (498) the crime of incitement to genocide for the purposes of preventing and prosecuting it.

1. How can we manage different allocations of the values of speech vs. security at the national and international levels?

Susan indicates that her six-part test is intended to provide an interpretive aid, rather than a list of elements of the crime. In other words, her project is not, strictly speaking, a doctrinal one. However, because of the project’s doctrinal implications, it would be useful to engage more concretely the conflict Susan frames at the outset between the U.S. standard for incitement and the international criminal law test she proposes. Even if there is no customary international law against hate speech (492 n.33), is there—or would Susan like to see—a more robust customary international law prohibition of incitement to genocide? If so, does the four-part test applied by the ICTR in the Media case (489 n.17) accurately reflect this standard?

2. What is the appropriate relationship between criteria for prosecution and criteria for prevention?

Susan suggests that accurately identifying incitement presents important opportunities for prevention, because incitement is an inchoate crime (494 n.42). She highlights the U.S. government’s decision not to jam the RTLM signal and prevent the dissemination of genocidal messages in Rwanda (488 n.12), and indicates that her six-part test should inform the deliberations not only of courts, but also of those contemplating “genocide-prevention efforts” (489).

It strikes me as potentially problematic to conflate these two scenarios without more detailed analysis. If we are going to use the six-prong inquiry to identify triggering conditions for the ability—or even obligation—to breach state sovereignty in order to disrupt telecommunications, then we should talk concretely about the parameters of such an obligation, and how it could be operationalized. This is a compelling and important project, which Susan hints at but does not pursue here. If we are concerned with criminal prosecution, it seems to me important to discuss at greater length how Susan’s “reasonably possible consequences” test compares to other criminal law tests regarding probable consequences, so that domestic and international jurisprudence incorporating this test can be predictable, consistent, and legitimate.

[Mark Drumbl is the Class of 1975 Alumni Professor of Law, Washington and Lee University School of Law.]

Susan Benesch’s VJIL article is timely, thoughtful, and important. She insightfully sets out the catalytic relationship between hate propaganda and genocide. Her comparison of the methodological similarities between the Rwandan and Nazi German contexts is instructive. The mainstreaming of hate-mongering is a condition precedent for genocide to become truly massive. Consequently, if the criminal law could shut down hate-mongering before actual genocide - for example, by incapacitating the conflict entrepreneur before violence is normalized - then it might fulfill a preventative function. Susan’s proposed reforms to the definition of incitement (the “reasonably possible consequences” test) take us some of the way there. In all likelihood, however, prevention through criminal punishment would require an even lower threshold for incitement than Susan’s proposed test. If a speaker can only commit incitement to genocide if the audience “must already be primed, or conditioned” (p. 494) to respond, then might it already be too late? Deterrence no longer may be possible – assuming the criminal law ever can serve a deterrent function in this situation. As a matter of pragmatics, I wonder whether any criminal tribunal or court would prosecute incitement to genocide in the absence of a genocide actually having occurred. Consequently, truly effective preventative efforts may best be had in areas such as humanitarian communications intervention, radio jamming, broadcasting of diverse views, as well as forcible measures. That said, the criminal law also aspires to serve retributive, expressive, and didactic goals ex post, and Susan’s reformulation of the law helps provide clarity, consistency, and proportionality in each of these regards.

I couldn’t agree more with Susan’s conclusion. She identifies among the reasons that current law on incitement has “go[ne] astray” that courts “try[] to understand international crimes simply as large-scale versions of domestic offenses” (p. 528). In my opinion, this is the case not only when it comes to substantive crimes such as incitement, or the role of freedom of expression as a “defense,” but also in a variety of other substantive, procedural, and correctional assumptions that underpin international criminal law generally. Collectivized eliminatonist genocide, as Susan rightly points out, is not the same thing as an isolated deviant hate crime. Extending “freedom of expression” from the rarified confines of a marketplace of ideas in a settled democratic polity to condone incitement in a context of state monopolies over eliminationist rhetoric is ill-fitting.

Many thanks to Opinio Juris for the invitation to blog, to the Virginia Journal of International Law for publishing my article "Vile Crime or Inalienable Right: Defining Incitement to Genocide," and to Mark Drumbl, Chimène Keitner, and Gregory Gordon for commenting.

The article argues that incitement to genocide demands keen attention because it is a precursor to genocide, and may be a prerequisite for it. Public speech is often the means by which ‘conflict entrepreneurs’ – to use Mark’s thought-provoking term – ‘exacerbate discriminatory divisions which they then commandeer.’ (Atrocity, Punishment and International Law, p. 25).

However the crime remains alarmingly ill-defined. Courts have begun to decide cases on incitement to genocide during the last decade, beginning with the ICTR’s conviction of Jean-Paul Akayesu in September 1998, but have failed to explain adequately what incitement to genocide is, or how to identify it. The confusion is so great that a Canadian federal appeals court found that a November 1992 speech by the Rwandan Hutu activist Léon Mugesera showed him to be “a fervent supporter of democracy” who spoke of “elections, courage, and love” – and then the Canadian Supreme Court concluded that the same speech constituted incitement to genocide.

The Genocide Convention, which simply describes incitement to genocide as “direct and public,” does very little to limit the crime and, especially, to distinguish it from hate speech. Without a reliable distinction, a mere racist could be convicted of a crime tantamount to genocide, and speech may be unduly and dangerously restricted. Another knotty problem that courts have so far side-stepped is the temporal one. Since it takes time to persuade a group of people to condone and/or participate in genocide, incitement to genocide must not be limited to statements made on the immediate brink of genocide, or once it has already begun. But Mugesera’s speech was given seventeen months before the Rwanda genocide started, and there must be some lapse of time that would be too long, even though courts have found that there is no causation requirement for incitement to genocide. To solve this problem, I propose that a speech be considered incitement to genocide if there is a reasonable possibility that genocide can occur when the speech was given – irrespective of whether genocide actually takes place later. Note that the “reasonable possibility” standard is not inconsistent with criminal law, since it is not to be used as a standard of proof, but rather as an aid in defining or recognizing a crime.

To evaluate when there is (or was) a reasonable possibility that a speech will lead to genocide, I propose a six-part test. The first inquiry is whether the speech was understood by its audience, at the time it was made, as a call to commit genocide. (It is not enough to examine the plain meaning of the speech, since coded language is often a feature of incitement to genocide.) The second inquiry is whether the speaker had some form of influence over the audience. This emerges from my observation that anyone can commit hate speech, but incitement to genocide requires some form of influence over the audience. Political or state authority is not necessary and may in fact be weaker than the influence of someone like Simon Bikindi, the Rwandan pop music idol who is now a defendant, charged with incitement to genocide, at the ICTR.

A third inquiry is whether the speaker used what I call hallmarks of incitement to genocide – techniques that prepare the audience psychologically for genocide. One such technique is to announce that the intended victims are plotting to massacre the audience: the Jews will annihilate you Germans if you don’t kill them first, the Tutsi are coming to wipe out you Hutu. This makes genocide seem necessary, like homicide in self-defense. The other three ‘prongs’ narrow incitement to genocide by describing a social context in which conflict entrepreneurs have already taken other damaging steps: disseminating hate speech, quashing dissent so that the poisonous speech cannot be neutralized by the marketplace of ideas, and promoting violence against the intended victims. If all six prongs of the test are satisfied, it is reasonably possible that the speech will lead to genocide.

Many thanks once again to Kevin Heller for his thorough review of the article, for his kind compliments, and for his very insightful comments. Kevin is highly qualified to evaluate the article, and I can already see that I am benefitting from this exchange. I am very pleased that he believes the article to be useful and that he agrees with me on a number of points. At the same time, I will take this opportunity to address a couple of the issues that he highlights as possible points of divergence.

First, I will address Kevin’s points about the undesirable effects of the ICTY’s and ICTR’s “Completion Strategy” and the ICTR’s decision to take judicial notice of genocide. The two are related. The decision to take judicial notice was made in an effort to expedite trials. This was also the main goal of the Completion Strategy, which is the term for the Security Council’s mandate that the tribunals complete their work in the next several years. As I pointed out in the article, to the extent that efficiency is pursued at the expense of fairness and accuracy, possibly leading to unjustified convictions, the tribunals may in fact be moving toward a political model, and one devoted above all to efficiency. (This may be a move toward a “managerial model,” to quote Maximo Langer, who has analyzed it in greater depth). It was beyond the scope of the article to examine the full effects of the Completion Strategy and this move toward efficiency. I agree with Kevin that the Completion Strategy has reduced the perceived fairness of the tribunals among a number of defense attorneys and outside observers (including Kevin himself, in his excellent piece in the American Journal of International Law). And to the extent that it has compromised defendants’ rights to present evidence, to confront witnesses, or to contest all the specific charges leveled against them, it may have, in fact, reduced the fairness of trials. So I would acknowledge that the Completion Strategy in some respects represents a shift toward the political goal of efficiency over the adjudicative goal of apportioning guilt and innocence in a fair manner.

At the same time, as I discussed in the article, commentators and defense attorneys sometimes overlook incidental effects of the Completion Strategy that may in fact favor defendants. For example, as some defense attorneys whom I interviewed acknowledged, the Completion Strategy has led judges to trim overbroad indictments and to discourage or prevent prosecutors from introducing evidence that is cumulative or unrelated to the charges against the accused. To this extent, it has nudged trials away from some of the broad political goals which animated the work of the court in earlier years—for example, the goals of pursuing a fuller historical record and giving victims the opportunity to achieve closure by testifying in court. In short, I believe that the effects of the Completion Strategy are complex and do not entirely favor the prosecution or the political model.

Next, I will address Kevin’s comments about some of my statements that he believes may express a dismissive attitude toward defense attorneys. Throughout the research and writing of the paper, I tried to maintain a neutral and detached perspective concerning the role of defense attorneys at international criminal trials. But it is instructive for me to see that some of the statements do not appear to be entirely balanced in the eyes of a careful and knowledgeable reader. I would like to provide some further explanation of my intended meaning with respect to some of the statements that Kevin quoted.

My statement that “[i]t is likely that, when defense attorneys refrain from political arguments, they are simply making a strategic decision,” did reflect the responses of some of my interviewees. A number of defense attorneys made statements such as “judges do not like political arguments” and “such arguments are generally useless.” This suggested to me that they decided not to make political arguments at least in part because they thought the arguments are not likely to be successful. I do agree that these comments do not provide a full explanation why defense attorneys refrain from political arguments, and I offered other explanations of the defense attorneys’ decision to do so –although these explanations were perhaps more tentative than I meant them to be. I pointed out that the distance of the international tribunals (and their lawyers) from the communities involved in the conflict may be a critical factor that enables the lawyers to avoid becoming embroiled in the political aspects of the trials. Second, in a later section, I explained how professional norms of attorneys further shape the decision not to make political arguments. Namely, I argued their education and work experience in an adjudicative model of criminal trials has likely instilled in them a respect for the rule of law and a reluctance to resort to political arguments. A number of attorneys simply believed that resorting to political arguments was not behavior befitting a good lawyer. This is a finding that was quite striking to me and I hope to examine it in greater depth a future essay on the professional norms of defense attorneys in international criminal tribunals.

Once again, I would like to thank Kevin for taking the time to read the paper so thoroughly, and for offering his very useful and thought-provoking comments. I look forward to continuing the conversation about the purposes of international criminal trials and about the role of defense attorneys in these trials.

A final thanks again to Opinio Juris and the Virginia Journal of International Law for giving me the opportunity to take part in this exchange.

Many thanks to Opinio Juris and the Virginia Journal of International Law for hosting the symposium and inviting me to participate, as well as to Kevin Heller for agreeing to comment on my article.

The article addresses a fundamental question about the purposes of international criminal trials: Do international criminal trials serve primarily legal purposes, similar to the objectives of domestic trials, or do they serve primarily political purposes, such as helping communities heal and compiling an accurate record of the past? The article examines this question through the perspectives of an overlooked, but important, participant in these trials—the defense attorney. Through personal interviews, scholarly articles, and case law, I analyze the attorneys' motivations, strategies, and tactics in representing defendants at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In particular, I ask whether defense attorneys believe that international criminal trials serve primarily adjudicative or primarily political purposes.

The survey finds that defense attorneys believe that these trials are much farther from being constructed primarily to satisfy political purposes and much nearer to being truly adjudicative proceedings whose crucial function is to separate those who are blameworthy from those who are not. Defense attorneys believe that a good number of their clients are innocent and that acquittals are possible. Their perceptions, I argue, are not merely inevitable products of their role, but are supported by an increasing number of acquittals, dismissals, and vigorous debates about liability doctrines and rules of procedure. Finally, and contrary to some perceptions, most defense attorneys do not view political statements or attacks as appropriate tactics in international criminal trials and instead focus on factual and legal challenges to the prosecution's case.

The perceptions of those who participate in the trials say something about what kind of proceedings these are. Even as international trials retain their unique political importance, the attitudes of those actually engaged in them reflect their character as increasingly adjudicative proceedings, with separation of the guilty from the innocent as the central purpose. Importantly, as key players in the trials, defense attorneys not only reflect, but also influence the proceedings, shifting them toward the adjudicative model.

Of course, fully contested, adversarial trials serve both legal and political purposes. But to the extent that these purposes occasionally come into conflict –where, for example, political purposes such as efficient closure and establishment of a historical record might recommend one set of procedures, and classic legal principles might recommend another –the debate becomes important. If international criminal trials increasingly serve the same adjudicative purposes as domestic trials, then the procedures of the tribunals and the actions of the participants will adjust accordingly. The perceptions of defense attorneys provide a signal that international criminal trials are moving in this direction.

Our hope for those who are working to promote the legal concept of odious debt—whatever their political stripe or ecumenical affiliation—is that our exploration of Sack’s life will serve to lessen the focus on Sack and his theory in a way that will redound to the benefit of the movement. The emphasis on Sack’s résumé has had two negative effects on odious debts scholarship.

First, scholars have glossed over the details of Sack’s theory, which simply does not do the work that odious debts proponents want it to. Which of the modern world’s debt-burdened nations will be helped by a doctrine that requires state succession as a condition precedent? Under Sack’s doctrine, mere political transformation, no matter how revolutionary (e.g., from absolutist monarchy to authoritarian oligarchy to representative democracy), would never trigger the possibility of odious debts forgiveness. Taken seriously, the three conjunctive prongs of Sack’s doctrine—despotic regime, lack of benefit to the populace, and creditor awareness of the illegal purposes of the loan—would disqualify virtually all debt from being odious. We think it quite clear that Sack intended his doctrine to be extremely strict and creditor-friendly, to avoid future financial fiascos similar to the Soviet repudiation of the Tsar’s debts.

Second, the focus on Sack has drawn attention away from other scholars and sources that may ultimately prove more—or less—valuable to promoting a strong doctrine of odious debts. If we are going to laud the synthesizers of doctrine, perhaps more attention should be paid to Mohammed Bedjaoui, who reviewed the odious debts literature and attempted to formulate a doctrine in the 1970s. Or to Gaston Jèze, who braved violent public objections to represent Haile Selassie in his negotiations with Italy before the League of Nations. And perhaps scholars should be investigating more carefully other historical figures and precedents that are viewed as the pillars of the odious debts doctrine. Is the characterization of the Tinoco arbitration in the odious debt literature accurate? Or the U.S. position in its negotiation with Spain over Cuba? What other historical icons have been under-analyzed or taken for granted? Imagine showing up in federal court in New York (most sovereign debt contracts are governed by New York law), arguing for the adoption of a doctrine of public international law. Credibility with the judge, who is already going to be wary about doing anything perceived to be an extension of law, will evaporate when she discovers that the historical underpinnings of the doctrine haven’t been adequately researched.

Finally, our article gives Sack every credit he deserves; he was a remarkable student or else he would not have received a higher education in anti-Semitic imperial Russia; he did teach at numerous prestigious law faculties; he did synthesize the existing strands of the odious debts doctrine and coin a lasting name for the idea; he did publish a treatise on sovereign debt partition that was widely reviewed and, in part, well received. But what our article doesn’t do is give Sack the credits he doesn’t deserve and never claimed for himself. He never claimed to have been a tsarist minister, and there is no evidence that he considered himself to be a foremost scholar of sovereign debt in his lifetime.

It would have been easy to stop researching Sack after determining that he was never a tsarist minister. But we felt compelled to continue seeking the details of his life partly because we were curious, but also out of a sense of fairness to the man, who lived a difficult life and whose fate was shaped by some of the harsher forces of recent history—institutionalized anti-Semitism, revolution, civil and world wars. Is his life fairly summarized by the phrase—however felicitous—“once a minister of Tsarist Russia and thence, after the October Revolution, a Parisian law professor”? (Hoeflich, 1982 U. Ill. L. Rev. 39, 41 (1982)). Why not strive for accuracy, and describe him as “a professor of international law and finance who synthesized a cautious version of the odious debts doctrine in 1927”? What we gain in accuracy we lose in glamour. And while we might feel gratitude to Sack for his work in synthesizing the odious debts doctrine, it does not follow that we should “reward” him by puffing his résumé or accomplishments posthumously. Instead, we have memorialized the man by describing the contours of his life with as much accuracy as the distance of history permits.

When a myth is unquestioningly repeated by so many scholars and political activists, it is a fair question to ask why. What purpose does this myth serve? What wish—articulated or not—does it fulfill? Perhaps we will learn the answer to those questions another day.

I am very grateful to Professors Mitu Gulati and Sarah Ludington for the wealth of information they have gathered about the life of Alexander Sack, the Russian legal scholar who penned the doctrine of odious debts, in their article "A Convenient Untruth: Fact and Fantasy in the Doctrine of Odious Debts." I have taken note of the authors' view that an inadvertent error was made by Michael Hoeflich, whom I cited in my book, Odious Debts: Loose Lending, Corruption and the Third World's Environmental Legacy. I will amend the online version of my book, to discuss their view that Sack was a legal advisor to the Provisional Government of 1917, rather than a minister in the Tsarist regime.

In their paper's abstract, Gulati and Ludington set out to expose the "murky reality" of the life of Alexander Nahum Sack, and how this reality conflicts with the "myth perpetuated in the odious debts literature." The dominant theme, though insinuated rather than stated clearly, is that the odious debts movement has deliberately exaggerated Sack's eminence in order to establish the doctrine as customary international law. The authors also make few distinctions among the various organizations in the debt forgiveness movement. I would recommend that the authors stick to the facts rather than assign motives, and be precise in their charges rather than employing broad brushes.

The facts they do present in their paper, in my view, do not diminish Sack's scholarship on the issue of state debts and odious debts, in particular, but strengthen it. Moreover, rather than dispel myths, I fear their paper creates them.

Let me start with the issue I know best, the views that the authors, with their broad brush, may be wrongly ascribing to me. They seem to think that I have embraced Sack's doctrine in order to indiscriminately relieve Third World debts. They have jumped to that conclusion without any basis in fact – nothing in my writings or in my organization's indicate that Probe International is after debt relief, per se. Rather, as our history shows, we want honest and accountable international finance by establishing the responsibilities of creditors (or borrowers), and thus their rights to repayment (or repudiation). For this reason, we have always argued against giving blank checks to Third World governments in the first order, or in the form of debt relief.

While we are concerned about Third World poverty, we are not a poverty group. But, we believe, a crucial step in eliminating Third World poverty is to eliminate the moral hazard that has plagued sovereign Third World borrowing for the past 60 years. We applaud Sack for wanting countries and their citizens to assume responsibility for legitimate state debts. We also applaud him for wanting to place responsibility for the illegitimate debts where they belong — with the lenders and the true borrowing party, the dictator. Nowhere do I try to make of him a radical, as the authors seem to believe.

From this wrong premise as to my motives (as part of the so-called "radical debt forgiveness movement"), the authors seem to have leapt to other unwarranted assumptions. For example, to extract this "radical debt forgiveness" agenda from Alexander Sack's doctrine they imply that I (and the "debt forgiveness crowd") had to do some fancy footwork around Sack's "consistently and uncompromisingly pro-creditor position" to fit his thesis to our bill. Here they have misrepresented Sack's thesis.

Sack argued that state debts should be repaid in the interest of international commerce, with one exception — when the debts are odious. This is the qualifier — when creditors lend to a sovereign they need beware that the funds are not ultimately used against the interests of the people, to oppress the people, for manifestly personal purposes, etc., lest they lose their claim to repayment. To avoid arbitrary repudiation, Sack also proposed an arbitral procedure in which each side could make their case.

Are the authors saying that Sack didn't mean to carve out "odious" debts as the exception to the rule of repayment of state debts? Are they saying that he disingenuously designed his test of odiousness to fail and therefore to appease creditors of the day? I prefer to take Sack at his written word rather than assign motives to a dead man as the authors seem to have done.

To their credit, Professors Gulati and Ludington concede that Sack's innovative proposal for a new body of law that viewed states as private actors when they borrowed from foreign citizens on the international debt market – essentially, private contract law — didn't turn out to be harebrained after all, even though it was dismissed at the time by some in the legal academy. "Sack was prescient," they say, "because this is indeed the way in which the law governing state debts to foreign bondholders has evolved."

I would argue that Sack's genius may have stemmed from his economics and public finance perspective, and from experience that gave him novel insight into the perils of sovereign borrowing.

But there I go again, "lionizing" the man. I don't mean to give credit to Alexander Sack to the exclusion of other scholars who have written about sovereign debt: I am grateful to Jeze for his articulation of the phrase "debts de regime," to Charles Cheney Hyde for his notion of "hostile debts," to the American Commissioners to the Spanish-American War peace negotiations for their arguments against assuming the so-called Cuban debts, to Chief Justice Taft for his opinion about the legitimacy of the Tinoco debts, and to Grotius for using the word "odious" 400 years ago, etc. The more the better, I say. But, as professors Gulati and Ludington point out, Sack did a rather good job synthesizing the various principles articulated by the above mentioned scholars and developing the concept of the duty of creditors. In short, he fashioned the doctrine of odious debts.

His inspired insights resonate with me. And — I'll go out on a limb here – with millions (even billions, I dare say) of ordinary citizens around the world who sense that there ought to be a law against the kind of unaccountable sovereign borrowing that created the intractable Third World debt crisis.

As a non lawyer, but as one who is constantly searching for rules of law to correct injustices, derisive treatment of Alexander Sack at Gulati and Ludington's hand suggests to me that the problem rests more with the process of international law-making than with Mr. Sack.

Put another way, does it really matter to law-makers today if Alexander Sack is deemed to have had no authority (according to the rules of international law making) to influence international public law, if the people, masses of people, say his formulation of the doctrine of odious debts is the law they want? More than people wanting his law, his doctrine has been accepted by quasi-judicial bodies such as the South African Truth and Reconciliation Commission, which surely must have some standing, by large segments of the Church community as a whole, which as we all know once wrote the law, and by leaders and governments in numerous countries. And their approach is not to repudiate, but to investigate, to separate the odious debts from the non-odious debts, and then to arbitrate. Alexander Nahum Sack made a great contribution to the advancement of the rule of law, a contribution that almost a century later resonates with great force. We should give the man his due.

And that is something the authors seem intent on robbing him of posthumously.

I am not persuaded that Sack did not enjoy wide respect in his day. For someone – a Jew in the anti-Semitic Europe of 100 years ago no less — to have been welcomed into the University of Petrograd, the school of International Law at The Hague, the Institute des Sciences Sociales et Politiques and the Ecole des Hautes Etudes Internationales in Paris, as he was, is remarkable. For a prestigious publisher to publish his major work, as it did, and for the work to be widely and favorably (and unfavorably) reviewed by some of the most prominent scholars in international law as it was, also demands respect. For respected schools such as Northwestern University and later New York University to have sought him, as they did, also speaks to the high regard in which he must have been held. There is no basis on which to judge Sack's hardships as being deserved. After all, they chiefly stemmed from an accusation of having Soviet sympathies, a not uncommon charge in that nascent McCarthyite era, but surely a threatening and disturbing one to someone such as Alexander Sack.

To denigrate Sack, as the authors do, by portraying him as having no eminence as a scholar in any field of law, by describing his teaching history as "peripatetic," and his response to ill-treatment (firing) by NYU as "cantankerous, outspoken, querulous and litigious" rings of "it serves him right."

In the end, it seems to me that Gulati and Ludington are saying that Alexander Sack's formulation of a doctrine of odious debts should be discounted because he wasn't eminent enough or pleasant enough to win friends and influence people in international law. That he may have been difficult to work with (if this is indeed the case) seems beside the point. Many great personages throughout history have been difficult if not impossible to work with. We remember them for their accomplishments, not for their desirability as dinner guests.

Those of you who follow the literature and debate about odious debts forgiveness have probably noted the frequent mention of Alexander Sack, who is credited with authoring the doctrine of odious debts in his 1927 treatise on the subject of sovereign debt partition: Les Effets des transformations des Etats sur leurs dettes publiques et autres obligations financiers. Sack is variously described as a tsarist minister, a Russian jurist living in Paris, the foremost scholar of sovereign debts of the day, and the father of the odious debts movement. Sack has been lauded so frequently by odious debts proponents that his name even worked its way into the official proceedings of the Iraqi National Assembly, when it declared its willingness to repudiate debts incurred by Saddam Hussein:

There is a strong basis in international legal principle and precedent to define these debts as being "odious" and thus not legally enforceable. This legal doctrine of odious debt was formulated in the 1920s by Alexander Sack, a former Russian Minister working as a legal professor in the Sorbonne University in Paris. He published the most extensive and important works on the treatment of state debts in the event of regime change.

We have just published an article that examines the life of Professor Sack and his relevance to the odious debts movement. We began with the project of confirming the biography recited by odious debts proponents; what we found surprised us, because so little of the Sackian myth held up to reality.

To summarize our findings, Sack was indeed a professor of law who was born and trained in pre-Soviet Russia, but he was not a tsarist minister. He was only 27 and recently returned home from military service when Tsar Nicholas II, the last tsar of Russia, abdicated. Sack was also Jewish, further reducing the likelihood that he could have risen to a position of prominence in the regime of the notoriously anti-Semitic Tsar. Sack left Russia in 1920 and was teaching law in Paris when he published his famous treatise, but he left Europe for good in 1930 and spent the remainder of his life (and the majority of his teaching career) in the United States. And while it is always difficult to measure a scholar’s eminence in his field, an examination of contemporary reviews reveals that Sack’s treatise, while well received in some parts, hardly established him as the preeminent scholar in the field of sovereign debts. His doctrine of odious debts, which appears to have been synthesized from a variety of international law treatises that Sack cites in Les Effets, was virtually overlooked until odious debts forgiveness became a hot political topic in the 1990s. Last but not least, Sack was not a political revolutionary—as, we suspect, many of his modern supporters would like him to be. His writings as a whole suggest that he was actually quite conservative and likely would have been unsupportive of the modern odious debt movement that holds him up as a hero.

Perhaps most surprisingly, we found that Sack was not the source of his own mythology. We found several resumes and job applications authored by Sack, and in none of them does Sack claim to have been a tsarist minister. And so as researchers, we began to question the significance of the Sackian myths to the group of scholars and odious debts proponents who had been perpetuating the myths. Why had the odious debts movement invested such weight in the resume of this obscure legal scholar? How and why did Sack’s iconic status arrive so suddenly and with so little biographical information about the man?

The answer lies partly in a quirk of customary international law. Sack’s prominence—particularly his status as a minister in the tsarist government—lends authority to his doctrine of odious debts and buttresses the claims of its proponents that such a doctrine exists as part of customary international law. The “teachings of the most highly qualified publicists”—which include the writings of prominent scholars in international law—are among the secondary sources of authority that customary international law recognizes, and thus Sack’s eminence is directly linked to a desire to validate his doctrine of odious debts. Ministerial experience would show that Sack had authority and first hand knowledge of state practice, and perhaps even shaped state practice—similar, for example, to Charles Cheney Hyde, who was both the legal counsel of the state department (and thus in a position to shape state practice) and a professor of international law.

The rest of the answer may lie in Sack’s probable greatest achievement—the coining of the phrase “odious debts.” The idea of odious debts—debts void on moral or equitable grounds—had been floated and written about in international legal circles prior to the publication of Sack’s treatise. But, other writers had referred to them in a variety of other terms—as war debts, imposed debts, subjugation debts, or “dettes de regime.” What Sack did, it seems, was to synthesize the various strands of these arguments in his treatise and give them a catchy descriptor, one that has stood the test of time and can provide a rallying point for a movement.

For us, unearthing the Sackian story has been fun, fascinating actually. If we were real historians, there is undoubtedly much more we could have unearthed: for example, about Sack’s relationship with John Davis, the Davis Polk partner who argued Brown v. Board on the Board side, and the full story of why Sack was fired from his tenured position at NYU. But the more interesting story, and the one to which we have no definitive answer, is how this could have happened. How was the Sackian myth constructed with no one figuring out that it was a house of cards? And is this commonplace in public international law?

One answer we have gotten from our critics is that Sack’s identity and ideas are quite irrelevant to the modern ideas about odious debts. Okay, but surely it cannot help the credibility of those ideas if the founding father of a movement—the former tsarist minister turned revolutionary hero—is a fictional character. The two of us are supporters of the ideas behind the modern odious debt movement; we believe strongly that debt forgiveness could be a powerful and valuable instrument for international justice. And so we pose the following question to the odious debts movement: Why not drop Sack? His theory is too conservative and he wasn’t prominent enough to give any real credibility to the doctrine. Isn’t it time for a new hero?