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75 Ohio St. L.J. 571 (2014)
The Forgotten Nuremberg Hate Speech Case: Otto Dietrich and the Future of Persecution Law

handle is hein.journals/ohslj75 and id is 595 raw text is: The Forgotten Nuremberg Hate Speech Case: Otto Dietrich and the Future of Persecution Law GREGORY S. GORDON* Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against humanity judgment against Reich Press Chief Otto Dietrich, who was convicted despite the fact that the charged language did not directly call for violence. So why is the Dietrich judgment, a relatively obscure holding, issued sixty-five years ago, so significant today, after the development of a substantial body ofad hoc tribunal jurisprudence on atrocity speech? It is because the seemingly antithetical holdings in Streicher and Fritzsche are more than just the subject of academic discourse. The next generation of atrocity speech decisions, it turns out, is at loggerheads about the relationship between hate speech and persecution as a crime against humanity. Trial chambers for the International Criminal Tribunal for Rwanda (ICTR) have found that hate speech, standing alone, can be the basis for charges of crimes against humanity (persecution). A trial chamber for the International Criminal Tribunal for the former Yugoslavia has reached the opposite conclusion. And surprisingly, these judicial decisions, like the academic commentary, have completely ignored the Dietrich judgment. This Article fills in this significant gap in the judicial and academic literature by historically situating Dietrich, elucidating its holding and relationship to the IMT and ad hoc tribunal decisions, explaining its significance for current and future hate speech cases (including those in Kenya, Burma and Sudan) and offering an explanation for why it has lain in obscurity for over six decades. The Article concludes that judicial reliance on the Dietrich judgment would extricate the law from the Streicher-Fritzsche jurisprudential gridlock and permit development of doctrine that is more coherent and human rights- oriented. It would also help illuminate an important but long overlooked chapter in legal history. * Associate Professor of Law, University of North Dakota School of Law, and Director, UND Center for Human Rights and Genocide Studies; former Prosecutor, International Criminal Tribunal for Rwanda and United States Department of Justice; J.D., U.C. Berkeley School of Law. This piece was originally presented at Harvard Law School (HLS) as part of a seminar sponsored by the Institute for the Study of Global Antisemitism and Policy (ISGAP). I would like to thank HLS and ISGAP, especially Director Charles Asher Small, for providing a superb forum and excellent feedback. I am also grateful for the outstanding work of our law library's Head of Faculty Services, Jan Stone. Jim Saywell, Dave Twombly, Matt Borden and the other editors of the Ohio State Law Journal have been such a pleasure to work with in preparing this article for publication-I would like to acknowledge their able assistance. And thanks, as always, to my amazing wife, whose support made this article possible.

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