Gordon on The Propaganda Prosecutions at Nuremberg: The Origins of Atrocity Speech Law and the Touchstone for Normative Evolution

Gregory S. Gordon, The Chinese University of Hong Kong, Faculty of Law, is publishing The Propaganda Prosecutions at Nuremberg: The Origin of Atrocity Speech Law and the Touchstone for Normative Evolution is volume 39 of the Loyola of Los Angeles International and Comparative Law Review (2017). Here is the abstract.

The black and white image of a two-tiered bench seating the cream of surviving Nazi leadership, framed by white-helmeted Allied sentries and dark-wood paneling, is by now the definitive meme for the birth of international criminal law (ICL). Less associated with that grainy photograph, though, is the origin of an important sub-branch of ICL – one that I call “atrocity speech law.” For among the defendants in that iconic Nuremberg dock were Julius Streicher, editor-in-chief of the rabidly anti-Semitic tabloid Der Stürmer, and Hans Frtizsche, head of the Radio Division of Joseph Goebbels’s Propaganda Ministry. Nearly two years later, the Third Reich’s Press Chief, Otto Dietrich, assumed his place on the same set of pews as part of the Ministries trial of the so-called “subsequent Nuremberg proceedings.” From the judgments rendered in respect of these three defendants, Allied judges formulated a set of nascent but influential principles regulating the relationship between hate speech and large-scale human rights violations. This article, an invited submission for a special symposium issue on the Nuremberg trials, revisits those cases, which centered on persecution as a crime against humanity. In doing so, the article provides an overview of Nazi Holocaust propaganda, the rhetorical template for the modern mass-murder campaign. Within this historical context, it traces the development of atrocity speech law in the decades since, paying particular attention to the normative wellsprings of incitement to genocide at the International Criminal Tribunal for Rwanda (ICTR). And its analysis regarding persecution’s subsequent development provides an indispensable point of repair for understanding the jurisprudential split between the ICTR (concluding that hate speech on its own can satisfy persecution’s conduct element) and the International Criminal Tribunal for the former Yugoslavia (ICTY) (reaching the opposite conclusion). As the article points out, on balance, the Nuremberg jurisprudence favors the ICTR approach. With important contemporary cases before domestic courts, the ICTY and the International Criminal Court, the Nuremberg propaganda judgments will continue to function as important doctrinal touchstones going forward. This article, which develops and expands on the Nazi propaganda sections featured in my recently-released Oxford University Press book, “Atrocity Speech Law: Foundation, Fragmentation, Fruition,” permits readers to see the Nuremberg judgments in a new light and understand their likely normative impact on international hate speech law for generations to come.

Download the article from SSRN at the link.

Naziism and the Geert Wilders Trial

Robert A. Kahn, University of St. Thomas School of Law (Minnesota), has published Who’s the Fascist? Uses of the Nazi Past at the Geert Wilders Trial as University of St. Thomas Legal Studies Research Paper No. 12-10. Here is the abstract.

This essay looks at how, during his trial, Geert Wilders and his opponents used references to the Nazi era – including but not limited to the Holocaust – to frame debates over Muslim immigration, Wilders himself, and the acceptability of hate speech trials. The Wilders trial is especially interesting because each side sought to call the other a “fascist.” For Wilders, the Quran was a fascist book, an Islamic Mein Kampf. To his opponents, Wilders was a “prototypical” fascist, one who spoke to the gut not the mind. But perhaps the strongest use of the Nazi past involved victims. If a well-established Jewish community faced the Nazis largely without the support of their fellow Dutch citizens and today faces continued anti-Semitism, what should Muslim newcomers expect? On a broader level the multiple references to World War II, fascism, and the Holocaust in the Wilders case show how nearly seventy years after the Allied forces declared victory the Nazi past continues to play a major role in European discourse over hate speech laws.

Download the paper from SSRN at the link.