THE WAR OF THE WORDS
By George P. Fletcher
Project Syndicate News Service
Korea Times, South Korea
Feb 6 2007
Nowadays, words are often seen as a source of instability. The
violent reactions last year to the caricatures of the Prophet Muhammad
published in a Danish newspaper saw a confused Western response, with
governments tripping over their tongues trying to explain what the
media should and should not be allowed to do in the name of political
satire. Then Iran trumped the West by sponsoring a conference of
Holocaust deniers, a form of speech punished as criminal almost
everywhere in Europe.
As Turks well know, it is dangerous to take a position on the Armenian
genocide of 1915. The most recent Nobel laureate in literature, Orhan
Pamuk, was prosecuted in Istanbul for denying Turkey’s official history
by saying that the Armenian genocide actually occurred. Other Turks
have faced prosecution in Western Europe for saying that it did not.
So words are now clearly a battlefield in the cultural conflict
between Islam and the West. The West has learned that, simply as
a matter of self-censorship, not legal fiat, newspapers and other
media outlets will not disseminate critical pictures of Muhammad,
and the Pope will no longer make critical comments about Islam. But
these gestures of cooperation with Muslim sensibilities have not been
met by reciprocal gestures.
Instead, Mahmoud Ahmedinejad, Iran’s president, has threatened to
wipe Israel off the map. The Israeli Foreign Ministry now seeks
prosecution of Ahmedinejad for incitement to commit genocide –
a violation of international law.
But the Israeli press is also bellicose. Israeli newspapers regularly
carry stories about why Israel may need to attack Iran to prevent it
from acquiring an arsenal of nuclear weapons. President George W.
Bush has made similarly ominous, if more vague, statements about
Iran. In Germany, preparing and calling for preemptive military
strikes from within the government are subject to criminal sanctions.
The world’s different legal systems have never been in much agreement
about the boundaries of free speech. Even between good neighbors
like Canada and the United States, there is little agreement about
punishing hate speech. Canadians punish racial insults, but Americans
do not, at least if the issue is simply one of protecting the dignity
of racial minorities.
But threatening violence is more serious. Many countries are united
in supporting the principle that if, say, Ahmedinejad does meet the
criteria for incitement of genocide, he should be punished in the
International Criminal Court. Indeed, the International Criminal
Tribunal for Rwanda punished radio station operators who made
aggressive public broadcasts urging Hutus to pick up their machetes
and murder Tutsis.
A decade ago there would have been a good argument in international
law that the Hutu-Tutsi example supports prosecution only after
the damage has been done. All the international precedents – from
Nuremberg to the present – concern international intervention after
mass atrocities. Domestic police may be able to intervene to prevent
crime before it occurs, but in the international arena there is no
police force that can do that.
It follows, therefore, that the crime of incitement should apply only
to cases like Rwanda, where the radio broadcasts actually contributed
to the occurrence of genocide. In cases where bellicose leaders make
public threats to "bury" another country (remember Khrushchev?) or
to wipe it off the map, the courts should wait, it was said, until
some harm occurs.
But the international community has become ever more intrusive in using
legal remedies against persons who engage in provocative and dangerous
speech. In September 2005, the United Nations Security Council passed
Resolution 1624 – paradoxically, with American approval – calling
upon all member states to enact criminal sanctions against those who
incite terrorism. The model of incitement they had in mind is the same
one that British Prime Minister Blair has publicly invoked: Muslim
leaders standing up in their mosques and urging their congregations
to go out and kill infidels.
Americans have traditionally said that, absent a risk of immediate
unlawful violence, this form of speech should be protected under
the First Amendment. US courts reasoned that it is better to allow
the release of hateful sentiments than to call attention to them by
showcasing them in court. But when it comes to terrorism in today’s
world, most countries, including the world’s democracies, are not as
tolerant as they used to be.
So the traditional liberal position in support of giving wide
scope to freedom of speech, even for extremists, is losing ground
everywhere. When it comes to fighting terrorism and the prospect of
genocide, the world is now becoming afraid of dangerous words.
George P. Fletcher is Cardozo Professor of Jurisprudence at Columbia
University. His latest book is Romantics at War: Glory and Guilt in
the Age of Terrorism.
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