Human Rights Workshop: Richard Ashby Wilson on International Criminal Tribunals

At the Human Rights Workshop on October 31, 2019, Richard Ashby Wilson explained his findings that international criminal tribunals are ill-equipped to cope with speech crimes such as propaganda. The key explanation he cited for this dynamic was the difficulty of proving that specific propaganda or speech has incited violence given the indirect ways in which speech influences people’s ideas and actions.

In his presentation, Wilson, the Gladstein Distinguished Chair of Human Rights and Professor of Law and Anthropology at the University of Connecticut, shared these and other insights from his research on the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). The Schell Center for Human Rights hosted the Workshop, titled “International Legal Ethnography and New Legal Realism.”

Through his studies, Wilson said, he has sought “to reveal what international criminal courts are really like as cultural institutions.” Among his areas of focus was the way in which international tribunals’ efficacy changes across different types of crimes. For example, Wilson looked at the disparity between the conviction rate for war crimes and the conviction rate for propaganda — the rate for war crimes, Wilson said, was 95% at the ICTY and ICTR while the conviction rate for propaganda was 50%.

“Propaganda trials create decisions that don’t really engender a great deal of confidence,” Wilson explained. He offered three reasons why propaganda trials tend to “lead to acquittal or are not well reasoned.” First, judges are seeking a “clear causal nexus” between the speech and the crime; but, Wilson said, “war propaganda doesn’t work like that.” Instead, Wilson argued that propaganda “has indirect effects, creates tolerance for violence, and decreases empathy towards other groups,” none of which can be easily proven nor quantified. Further, experts on propaganda and speech are “more often dismissed from trials than forensics or ballistics experts.”

Third, Wilson explained that some judges are accustomed to condemning hate speech in their respective countries, while some are not, which further hinders the effort to convict propaganda in a tribunal. Some judges are not confident saying that “the conduct is the crime,” Wilson said. Instead, he explained, rather than seeing hate speech itself as sufficient for a conviction, they look for a “probable causal link” between, for instance, propaganda and genocide, whereas there may not be one.

The conflicting legal traditions, Wilson suggested, are exacerbated by an opaque decision-making process. “International justice institutions are characterized by what Judith Clark calls ‘legalism,’” Wilson explained, “and the process of producing doctrine is occluded.” As a result, it is difficult for outside observers to understand how a legal decision was reached and how it could affect decisions in the future.

To investigate the reasons for these limitations, Wilson observed tribunals in action and interviewed judges. In these qualitative interviews, Wilson invited them to expand on their decisions, but they rarely did. He also led focus groups with members of the prosecution or defense counsel and surveyed former ICTY staff to gauge their beliefs about topics such as the relevance of historical evidence in international criminal justice cases. In one such survey, Wilson asked, “Is historical evidence relevant for proving mens rea in genocide cases?” While 45% of respondents said it was “highly relevant,” the majority of respondents were split. Defense lawyers, a subgroup of respondents who Wilson said “always” dismiss historical evidence as mere “background” when making arguments in court, responded in the survey that historical evidence “could be relevant.”

Wilson explained the divergent responses by positing that differences in opinion were primarily based on how long respondents had worked in these institutions. He found that after two years of working in these institutions, culturally diverse individuals “get socialized into the conventions of the institutions” and “adapt mentally to [the institutions’] way of thinking.”

Following Wilson’s discussion, Robert W. Winner Professor of Law and the Humanities and Schell Center Director Paul W. Khan conducted a Q&A with Wilson. Wilson emphasized that “what law schools teach 1Ls is not the whole story;” instead, he hopes his work can provide a more comprehensive picture of the challenges facing international criminal law.