Hate speech – the advocacy of hatred based on nationality, race or religion – occupies an exceptional position in international law.
Generally speaking, the right to freedom of expression extends to unpopular ideas and statements which “shock, offend or disturb.” Nevertheless, a number of human rights treaties, including the ICCPR, not only permit states to prohibit hate speech but actually require them to do so.
In addition, one particular form of hate speech – incitement to genocide – is one of only a few types of acts recognised as a crime under international law, akin to war crimes and crimes against humanity.
Incitement to genocide
In the wake of the Second World War, the Nuremberg Tribunal was established to try those most responsible for the atrocities committed by the Nazi regime.
In its judgment in the case against Julius Streicher, the Tribunal effectively held that incitement to genocide is a crime under international law, punishable even if the act in question was at the relevant time and place not illegal under the local law.
Streicher had been the publisher of the viciously anti-Semitic newspaper Der Stürmer, which had energetically encouraged the German people to persecute and exterminate Jews. Although the legitimacy of the Nuremberg Tribunal has often been debated on the grounds that it applied ‘new’ law retrospectively, the principles it established are today generally recognised both in customary law and in a number of international instruments.
More recently, the crime of ‘direct and public incitement to genocide’ has been one of the key charges laid against defendants in the International Criminal Tribunal for Rwanda, established by the UN in 1994 in response to the genocide of the country’s Tutsi minority.
In its jurisprudence, the Tribunal has elaborated somewhat on the definition of the crime. In The Prosecutor v. Nahimana, Barayagwiza, & Ngeze, it stated that the defendant’s intent must be established, and that “[t]he actual language used in the media has often been cited as an indicator of intent.” However, it is not necessary to show “any specific causation ... linking the expression at issue with the demonstration of a direct effect.”
Incitement to genocide is also a crime under the Statute of the newly- established International Criminal Court.
Duty to prohibit hate speech in domestic law
The inherent dignity and equality of every individual is the foundational axiom of international human rights. It is, therefore, perhaps not surprising that international law condemns statements which deny the equality of all human beings. Article 20(2) of the ICCPR requires states to prohibit hate speech:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
There is little debate internationally that restrictions on hate speech can be justified. Nevertheless, Article 20(2) has proven highly controversial and is variously criticised as being overly restrictive of free speech or as not going far enough in the categories of hatred it covers.
Article 20(2) does not require states to prohibit all negative statements towards national groups, races or religions but, as soon as a statement “constitutes incitement to discrimination, hostility or violence,” it must be banned. Some states, notably the USA, have taken the view that only incitement which is intended to cause imminent violence justifies restricting such a fundamental right.
One important motivation underlying this position is the fear that a broader ban on inciting “discrimination or hostility” will be abused by governments or will discourage citizens from engaging in legitimate democratic debate, for example on questions regarding religion and minorities. Owing to such concerns, several established democracies, including Belgium, Denmark, Finland, Iceland and the USA, have entered reservations to Article 20(2).
The UNHRCm has stated that there is no contradiction between the duty to adopt domestic legislation under Article 20(2) and the right to freedom of expression:
In the opinion of the Committee, these required prohibitions are fully compatible with the right of freedom of expression as contained in article 19, the exercise of which carries with it special duties and responsibilities.
At the same time, the UNHRCm has stressed that “restrictions on expression which may fall within the scope of article 20 must also be permissible under article 19, paragraph 3, which lays down requirements for determining whether restrictions on expression are permissible.” In other words, domestic laws adopted pursuant to Article 20(2) must, like all restrictions on freedom of expression, meet the three-part test.
The UNHRCm has dealt with a number of cases in the area of hate speech. In J.R.T. and the W.G. Party v. Canada, the applicant complained that a Canadian court order forbidding him from operating an anti-Semitic telephone service violated his right to freedom of expression. The service allowed members of the public to dial in and listen to tape-recorded messages warning them, for example, of “the dangers of international finance and international Jewry leading the world into wars, unemployment and inflation and the collapse of world values and principles.” The UNHRCm found the application inadmissible, principally because “the opinions which [the applicant] seeks to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under Article 20(2) of the Covenant to prohibit.”
The case of Faurisson v. France concerned a historian who had been convicted and fined under France’s Gayssot Act, which, briefly put, makes it an offence to challenge the conclusions and the verdict of the Nuremberg Tribunal. Faurisson’s conviction was based on his statement in a magazine interview that: “I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers ... I wish to see that 100 per cent of the French citizens realize that the myth of the gas chambers is a dishonest fabrication.”
The UNHRCm did not analyse whether the Gayssot Act as such was justified on the basis of Article 20(2) but, in line with its mandate, examined only whether the conviction of Faurisson had been consistent with the three-part test of Article 19(3). It considered that the conviction was based on a sufficiently clear law – the Gayssot Act – which served a legitimate purpose, namely to protect the rights of others, in this case the right of the Jewish community to live free from an atmosphere of anti-Semitism.
The UNHRCm also accepted that the conviction had been ‘necessary’, since information made available to the UNHRCm indicated that denial of the existence of the Holocaust had become a principal vehicle for anti-Semitism in France.
Faurisson’s right to freedom of expression had consequently not been violated. The UNHRCm did note, however, that application of the Gayssot Act “may lead, under different conditions than the facts of the instant case” to a violation of Article 19. Indeed, free speech advocates have often criticised the Gayssot Act and other ‘holocaust denial’ laws as being illegitimate or counterproductive.
The UNHRCm has so far never dealt with a communication complaining of a failure to implement the domestic hate speech legislation required by Article 20(2).
Besides the ICCPR, a number of other international instruments have a bearing on hate speech. Of particular relevance is Article 4 of CERD which goes substantially further than Article 20(2) of the ICCPR and requires states parties, among other things, to declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred [and] incitement to racial discrimination. In contrast to the ICCPR, CERD requires the prohibition of racist speech even if it does not constitute incitement to discrimination, hostility or violence.
The effect of Article 4 appears to be tempered a bit by its opening paragraph, which states that in adopting measures to implement its provisions, states should have “due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention,” which include freedom of expression.
Inevitably, however, these two requirements – to prohibit all racist speech and to respect the right to freedom of expression as recognised under international law – are considered by many to be in direct contradiction with one another.
The international community is divided on the issue: several states party to CERD – including Australia, Austria, Belgium, France, Italy, Malta, Monaco, Switzerland, the United Kingdom and the United States – have entered reservations to Article 4 or declared that they will interpret it in a particular way.
Even members of the UN Committee on the Elimination of Racial Discrimination, which supervises the implementation of CERD in a similar manner as the UNHRCm oversees the ICCPR, have trouble agreeing on the meaning of Article 4.
In a report to the UNHRCm, the Danish government described a case where a journalist had been convicted of hate speech by a Danish court after he included racist statements made by disaffected youths in a television programme. Whilst some members welcomed it as “the clearest statement yet, in any country, that the right to protection against racial discrimination took precedence over the right to freedom of expression”, other members considered that “in such cases the facts needed to be considered in relation to both rights.” The journalist concerned subsequently appealed to the ECHR. The ECHR held that his conviction constituted an infringement of the right to freedom of expression, on the basis that the broadcast had clearly been designed to expose and analyse the attitude of racist youths, not to promote their point of view. It was a serious programme, intended for a well-informed audience, and made a valuable contribution to public debate.
In a 2001 Joint Statement, the UN, OSCE and OAS Special Mandates on the right to freedom of expression set out a number of conditions which hate speech laws should respect:
- No one should be penalised for statements which are true
- No one should be penalised for the dissemination of hate speech unless it has been shown that they did so with the intention of inciting discrimination, hostility or violence
- The right of journalists to decide how best to communicate information and ideas to the public should be respected, particularly when they are reporting on racism and intolerance
- No one should be subject to prior censorship
- Any imposition of sanctions by courts should be in strict conformity with the principle of proportionality.
These provide a good basis for assessing the legitimacy of any particular hate speech law.
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