Case Western Reserve Journal of International Law 52 (2020) Crime as Cognitive Constraint hatred that constitutes incitement to discrimination, hostility or violence, states must distinguish three forms of expression: those requiring penal sanction; those only justifying a civil or administrative sanction, but not prosecution; and finally, those not requiring any form of sanction at all, but nonetheless “raises concern in terms of tolerance, civility and respect for the rights of others.” 123 The Rabat of Action recommends the adoption of both legal and policy measures to tackle the root causes of discriminatory speech. 124 Other treaties also prohibit certain forms of speech. The International Convention on the Elimination of All Forms of Racial Discrimination prohibits incitement to racial discrimination and incitement of violent acts against a certain race or group of persons of another color or ethnic origin. 125 The Genocide Convention prohibits direct and public incitement to commit genocide. Under Article III(c), incitement to genocide is a crime. 126 2. International criminal law The Statutes of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) incorporated the crime of incitement to genocide under the Genocide Convention as one of their punishable acts. 127 The Rome Statute similarly transplanted this crime in the text, but converted incitement to genocide from a crime to a mode of committing genocide under Article 25(3)(e). 128 123. U.N. High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights on the Expert Workshops on the Prohibition of Incitement to National, Racial or Religious Hatred, ¶ 20, U.N.Doc. A/HRC/22/17/Add.4 (Jan. 11, 2013). 124. Id. ¶¶ 21–26. 125. International Convention on the Elimination of All Forms of Racial Discrimination art. 4, Dec. 21, 1965, 660 U.N.T.S. 195. 126. Genocide Convention, supra note 7, art. III(c). 127. Statute of the International Criminal Tribunal for Rwanda art. 2(3)(c), Nov. 8, 1994; Statute of the International Criminal Tribunal for the Former Yugoslavia art. 4(3)(c), May 25, 1993. 128. Rome Statute, supra note 6, art. 25(3)(e). See RICHARD ASHBY WILSON, INCITEMENT ON TRIAL: PROSECUTING INTERNATIONAL SPEECH CRIMES 33 (2017) (explaining that the “odd placement” of incitement to genocide under Art. 25 of the Rome Statute as a mode of criminal liability rather than a crime under Art. 6 was likely a result of inadvertence); GREGORY GORDON, ATROCITY SPEECH LAW: FOUNDATION, FRAGMENTATION, FRUITION 385 (2017) ((arguing that this demotion is an “optical perception”); Thomas E. Davies, How the Rome Statute Weakens the Internal Prohibition on Incitement to Genocide, 22 HARV. HUM. RTS. J. 245, 245-46 (2009); Wibke Kristin Timmerman, Incitement in International Criminal Law, 88 INT’L REV. RED CROSS 823, 825 (2006). 165