WAR OF WORDS
by George P Fletcher

Times of India, India
Feb 13 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 trying to explain what
the media should and should not be allowed to do in the name of
poli-tical 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. Nobel laureate Orhan Pamuk was prosecuted
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 Ahmadinejad, Iran’s president, has threatened to wipe
Israel off the map. The Israeli foreign ministry now seeks prosecution
of Ahmadinejad 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.

The world’s different legal systems have never been in much agreement
about the boundaries of free speech. Even between good neighbours
like Canada and the US, there is little agreement about punishing
hate speech.

Canadians punish racial insults, but Americans do not. But threatening
violence is more serious. Many countries are united in supporting
the principle that if, say, Ahmadinejad 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 2005, the UN Security Council passed Resolution
1624 calling upon all member states to enact criminal sanctions
against those who incite terrorism.

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
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.

The writer is Cardozo professor of juris-prudence at Columbia
University. Copyright: Project Syndicate.