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Thursday, June 02, 2011

Of Feral Pigs, Communist Pigs, and Incitement to Genocide

Yesterday’s Lawrence (Kansas) Journal World featured a front page spread commemorating ten noteworthy and/or outrageous developments in the just concluded Kansas legislative session.  Coming in near the top of the list were remarks made by state representative Virgil Peck, who suggested back in March that shooting feral hogs might serve as a useful model for addressing a perceived problem of illegal immigration to the state.   Peck’s comments are disturbing on any number of levels, not least because their surreality and shock value; nonetheless, they have generated little national reflection about the central role of animal metaphors (particularly pig-centered metaphors) in propaganda and incitement to genocide.  In context, Peck’s remarks are stranger still, as the program he endorsed as a suitable model for immigration culls involved the Palinesque prospect of machine gunning feral hogs from helicopters. 

Peck’s precise language -- “It looks to me that if shooting these immigrating feral hogs works maybe we have found a problem to our illegal immigration problem” -- becomes truly gut-wrenching when one realizes that he obviously meant to use the freighted term “solution” in place of his first invocation of “problem.”   Wrestling seriously with genocide, crimes against humanity, and incitement as offenses that have been and can be perpetrated by Americans as well as alien peoples may not particularly burden the national attention span, but shooting feral pigs on grounds of racial purity has, it seems, become a minor obsession in a least some quarters of the country.  A few weeks ago I stumbled across a documentary (mockumentary?) on the Discovery Channel titled something like “Pig Bomb” and “Russian Boars” exploring the alleged explosion of the wild hog population in the Southeast.   The thesis of the show was that American farm pigs and their feral prodigy are well meaning and seldom uppity, but that in recent decades giant immigrant wild pigs from Russia and Ukraine have infested the native American population and made it dangerous by cross-breeding.   I suspect the show was meant to be taken seriously, but it might as well have been a Canadian or European spoof of overblown American xenophobia and anti-communism.  

Peck’s remarks tap into a long vein of nationalist discourse about the dangers of foreign pigs and commie pigs.   A half-hearted apology issued under pressure a day later does not dispel my sense that Peck is no mere unconscious racist (to borrow Charles Lawrence’s phrase).  When challenged on the obvious racist valance of his remarks, Peck was hardly in a position to feign outrage as Newt Gingrich recently did when called to account for labeling Barack Obama the Food Stamp President.   Peck’s approach is naked, direct, and dehumanizing.   It is the approach of Joseph Goebbels and Radio Mille Collines.  It is incitement to genocide.   The Rome Statute treats incitement purely as a modality of genocide, a means of attributing liability after the crime of genocide is completed.   The Genocide Convention, more soundly in my view, treats incitement as an independent offense that can be completed absent any actual killing.   Peck’s commentary goes well beyond group libel.   It is criminal and should be of grave concern to thinking citizens of the United States and the world.

Posted by Bill Merkel on June 2, 2011 at 03:53 PM in Criminal Law, Culture, Current Affairs, First Amendment, International Law | Permalink

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Thanks Anon. Much to the consternation of internationalists and human rights advocates, American exceptionalists and sovereigntists often invoke the First Amendment to suggest insurmountable obstacles to criminalizing hate speech and even incitement to genocide. And at least for the time being, popular political commitment to unfettered free speech certainly does pose a serious obstacle to domestic enforcement of hate speech and incitement prohibitions. But things may not be so straightforward as you assume on the level of Supreme Court doctrine. The Supreme Court clearly does not accept the proposition that all clauses of the First Amendment trump criminal prohibitions of general applicability. In Employment Division v. Smith in 1990, Justice Scalia made clear (causing outrage to many in Congress) that the Free Exercise Clause did not prevent prosecution of conduct alleged to be religiously motivated. More famously still, Oliver Wendell Holmes explained in Missouri v. Holland in 1920 that the federal government could acquire criminal enforcement powers not expressly delineated in the constitutional text by treaty, even if legislation enforcing the new treaty obligations clashed with vague, hortatory constitutional language such as the 10th Amendment. Limits to Missouri v. Holland were spelled out in Reid v. Covert in 1957, in which the Supreme Court made clear that the President lacked the power to waive a criminal defendant’s right to a jury trial in a federal case as protected by Article III and the Sixth Amendment by entering into an executive agreement with a foreign power concerning rules governing prosecution of U.S. armed services personnel and members of their families overseas. So Reid supports your position, in that it holds that specific constitutional guarantees cannot be overcome by entering into international agreements. But that still leaves the question of what level of protection the Free Speech Clause offers regarding advocacy of illegal conduct. I think everyone would take for granted that a Mafia don who orders a hit ultimately carried out by an underling cannot escape criminal responsibility of Freedom of Expression grounds. After all, as a textual matter, the First Amendment protects only “the freedom of speech,” not freedom of speech as an absolute matter, and some level of criminal advocacy has always been deemed outside the pale of constitutional protection. The contemporary test is now over 40 years old, having been announced in Brandenburg v. Ohio in 1969. In Brandenburg, the Supreme Court limited governmental power to prosecute illegal advocacy to speech calling for imminent lawless action and likely to lead to imminent lawless action. So even as domestic matter, it is clear that the First Amendment would not shield prosecution of incitement to genocide if the incitement in question advocated immediate illegal action and was likely to cause such action. The First Amendment, of course, is no shield at all the foreign prosecutions of Peck by authorities respecting their erga omnes obligations to enforce the jus cogens norm against genocide. Unless he seeks conviction and penance to expiate his sins, Peck might be foolish to vacation in Canada, Germany, or Spain.

Posted by: Bill Merkel | Jun 4, 2011 4:20:06 PM

Something is only criminal if it's against the law. Comments like the one discussed are protected by the First Amendment, Genocide Treaty or no.

Posted by: Anon71 | Jun 4, 2011 12:54:58 PM

I agree that "racial purity" analogy is misplaced, whereas the concerns about xenophobia, nationalism, and so on are not.

Of course it's arguable whether the statements in question from Peck meet the legal standard for incitement to genocide, such determinations, alas, being more readily made ex post facto.

Posted by: Patrick S. O'Donnell | Jun 3, 2011 3:28:38 PM

Cf.:

Question: How did the Nazis and the Hutus use language about insects to achieve their violent goals?

Hugh Raffles: Well, and both of those cases were times when people wanted to do extraordinary and violent things to another group of people and in order to do that, what they did was try to turn those people into objects that you could do things to. So, really what they did was they turned Tutsis into cockroaches and they turned Jews into lice, both of which are animals that we basically exterminate.

So, in Rwanda it was through this campaign through Hutu Power radio which has repeatedly called Tutsis cockroaches in the period leading up to the genocide. In Nazi Germany it was a little different because there was this - because not only were Jews called lice - and they were called many other things as well. They were also called cockroaches and they were also called rats as these very famous films of Jews being compared to rats with all this fast cutting. But, also because they were - there was this whole structure, sort of infrastructure of disease control and also fear of disease that was called into action against Jews. So, Jews actually really were not just sort of eliminated as vermin, but they were eliminated specifically as lice.

And there's all these ironies, so really you sort of horrible ironies so that - Zyklon-B which was the gas that was used in Auschwitz and generally widely anyway for extermination gas chambers, was an insecticide. When Jews were taken into - Jews and other people were taken into the gas chambers, they were told that they were being taken in for delousing and the rooms they were taken into were disguised as showers which was one of the first stages of the delousing procedures which people were familiar with. And there was also a lot of language that was used by Nazi leaders in which they talked about delousing; cleansing the country of lice and this is tied to a history in Germany of fear of disease, particularly of typhus. And there's the creation of border controls, delousing stations and border controls around the country and actively delousing and treating people in these very violent ways as they came into the country, particularly when they came in from the east from Russia and other parts of Eastern Europe.

So, a lot of it has to do with language. I mean, language is really important in that process of dehumanizing people and obviously I’m not the first person who’s pointed this out. Many people have. But, in Germany as well, it was tied to this - in some ways it was more complicated because it wasn’t just fitting the label and then the label letting you do something. The label was really tied into - and maybe it’s always like this. I’m not sure, but the name and the animal were really tied into all these fears which already existed and all these activities that existed, particularly these things around disease control and fear of disease and fear of parasites. Yeah, so it’s a complicated and very dark history, but yet, insects were very important in that. They were important, really, as vermin.

Posted by: Patrick S. O'Donnell | Jun 3, 2011 3:21:53 PM

Patrick,

Yeah, as I reflected on my post I realized it wasn't at all clear. My apologies. I understand the relationship between referring to people as animals and genocide. I believe "cockroaches" was the word of choice in Rwanda. My comment was directed at Prof. Merkel's later comments.

To clarify: I think professor Merkel is reaching to the point of absurdity that people "in at least some quarters of the country" are "obsess[ed]" with "shooting feral pigs on the grounds of racial purity." What? Is he serious? What does he think that people "in some quarters of the country" do? To the extent that people in some quarters of America are shooting feral pigs, it's to protect their property & safety from a very real problem. No one's out there shooting pigs "in the name of racial purity." Same with the TV programs. In recent decades, domesticated (not "American", but rather "domesticated") hogs HAVE mated with foreign hogs and become large & dangerous. That's a fact. And it's hardly suprising: there are africanized bees, asian snakeheads, argentine ants, etc. that wreak havoc on foreign environments. Linking the TV shows with "American xenophodia" is completely crazy.

Professor Merkel's comments are so off-the-wall, in fact, that I suspect that he imagines people down here "in some quarters of the country" (AKA the red states, where no straight-thinking law professor dare go) sitting on their porches culling pigs as some metaphor for racial purity...which simply isn't the case. Describing the culling of hogs as "Palinesque" only cements that perception...I imagine "Palinesque" is, for Professor Merkel, shorthand for "uncouth," "redneck," or "what people from 'some quarters of the country'" do.

That's troubling to me because I often take for granted that the posts on this blog flow from reasoned, well-calculated analysis of a legal problem. This post, it seems, is instead an off-the-wall rant that demonstrates a lack of understanding of the facts, as well as a deeply ingrained disdain for some undefined portion of the population that exists only in Prof. Merkel's imagination.

In any event, my apologies and thanks for the opportunity to clarify.

Posted by: casual reader | Jun 3, 2011 3:18:12 PM

I must say I am also confused by this post, on two grounds. First, there is a valid or at least colorably valid concern with invasive and/or feral animals, and although the gloss on the language used in this context is interesting, I think concerns about their "foreign" (as in, foreign to the local ecosystem) nature cannot be so easily assimilated to concerns about "racial purity." (I think Patrick's last comment, interesting as it is, is somewhat far-flung from this point, and thus from Bill's actual post.) Second, although I don't doubt all readers of this blog will find the legislator's comments stupid and offensive, I am not at all convinced they meet the legal standard for incitement to genocide.

Posted by: Paul Horwitz | Jun 3, 2011 2:57:16 PM

Too casual:

It was Peck who drew the metaphorical connection...and there's disturbing precedent for this kind of language in the history of genocide (eradication of vermin, etc.), wherein "the other" is de-humanized and metaphorical identification with some family, genus or species of non-human animal (as a 'pest' of some sort) is made, thereby making it social-psychologically more palatable to envision "eradicating" said group or groups of individuals related by organizational structure, solidarity, or common interests, and readily identifiable to both members and outsiders by these features (after Larry May). This is also made easier by the fact that we tend to invoke certain animals in referring to the failings, foibles or vices and violence of human beings, hence we are or act like "dogs," "rats," "jackals," "jackasses," "bitches," "monkeys," "wolves," and so forth, metaphorical descriptions that happen to demean these creatures in the animal kingdom as they fail to capture any of their real properties or attributes and thus involve crude forms of anthropomorphic projection.

Posted by: Patrick S. O'Donnell | Jun 3, 2011 2:30:45 PM

Yeah, I must say I'm totally confused. Russian boars mating with domesticated hogs and going feral, causing great damage, isn't alleged. It's like...real. And, it's also like...a problem, for those of us who are affected by like, real world things. And it has nothing to do with communism or foreigners or anything...any more than other "invasive species" problems do. Shooting feral pigs in the name of racial purity? You mean "eradicating a new and incredibly destructive invasive species?" What about eradicating "africanized bees" or "argentine ants" or "Asian snakeheads?" These are all well-known and hyped-up invasive species, but have nothing to do with racial purity, xenophobia, or anything else.

I concur with the abhorrence of Mr. Peck's statements. But drawing the connection between eradicating invasive species, "racial purity," and xenophobia is just silly. Quite frankly, posts like this seriously lessen my respect for law professors. Weird.

Posted by: casual reader | Jun 3, 2011 2:03:46 PM

Some readers interested in this topic may want to read Susan Benesch's article, "Vile Crime or Inalienable Right: Defining Incitement to Genocide," from the Virginia Journal of Int'l Law, Vol. 48, 3 (2008): 485-528. There was an online symposium on her article a few years ago at Opinio Juris that I found helpful as well: http://opiniojuris.org/2008/04/17/vile-crime-or-inalienable-right-defining-incitement-to-genocide/

The relevant posts took place from April 17-22, 2008.

Posted by: Patrick S. O'Donnell | Jun 3, 2011 10:12:01 AM

The pigs may well be real. But my suspicion is that they are non-ideological. That suspicion, however, is ultimately based on speculation.

Posted by: Bill Merkel | Jun 2, 2011 11:17:27 PM

If one is to believe the Smithsonian, the explosion of wild/feral/foreign/commie hogs, at least in Texas, is anything but "alleged:"
http://www.smithsonianmag.com/science-nature/A-Plague-of-Pigs-in-Texas.html

Posted by: kswiz | Jun 2, 2011 10:13:56 PM

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