Prof. VanLandingham on atrocity speech

Global Military Justice Reform contributor Prof. Rachel VanLandingham has this book review on Lawfare, dealing with Gregory S. Gordon's 2017 “Atrocity Speech Law: Foundation, Fragmentation, Fruition” (Oxford). She writes:

There is room for skepticism of this book’s underlying belief in the deterrence value of international criminal law—that it actually helps prevent future atrocities. Though Gordon is far from being the only scholar or policymaker to believe in such a benefit, international criminal law has simply yet to show its deterrent value; it sporadically meets other objectives such as retribution, incapacitation, reconciliation, and delegitimization. But it does bear saying that, since modern international criminal law’s birth at Nuremberg, those contemplating the commission of genocide and war crimes haven’t seem overly concerned by the possibility of being dragged to The Hague or elsewhere to stand trial for their crimes—be they atrocity speech crimes or the atrocities themselves.

Hence the claim by “Atrocity Speech Law” that fixing the broken relationship between speech and international crimes will contribute to atrocity prevention strikes this reviewer, at least, as unrealistic. To be sure, Gordon is not without available replies; perhaps one reason international criminal law has seemingly had such little deterrent effect at least with respect to atrocity speech crimes is because the law criminalizing such behavior is, in a word, a mess. Notice, and clear notice at that, is integral to the criminal law’s mission, in international as well as domestic law.

If the specific speech crime reforms of this book were somehow incorporated into the Rome Statute, or into charters of future war crimes tribunals such as a tribunal for Syria, and if these crimes were actually prosecuted, and the jurists interpreting them were to follow this book’s advice—then there is some hope for greater legal clarity and hence improved legal notice. That would allow for some optimism that the atrocities arising from such speech crimes would, in some measure, be deterred.