Criminalizing hate speech in the Balkans

Abstract

When does speech lose its legal protection and become criminally sanctionable because it causes violence? Among legal scholars, this is known as the “threshold problem,” and in international criminal law (ICL), the threshold is defined according to recent speech‐crime trials at the International Criminal Tribunal for the Former Yugoslavia. Yet, as borne out in ethnographic interview data, survivors and former combatants of the Yugoslav Wars disagree with ICL's approach to speech crimes. Judges in international tribunals deploy what I call endgame analysis , in which they consider the threshold of violent speech only at the inflection point when violence immediately and directly follows speech. In contrast, survivors and combatants assert that atrocity crimes resulted in part from the longer‐term accumulation of ethnic slurs and wartime misinformation enunciated by political and cultural authorities, both before and during the Yugoslav Wars. Challenging recent jurisprudence, they call for these former authorities to be held accountable for the violent, cumulative effect of their speech.