Prohibiting incitement to discrimination, hostility or violence
21 Dec 2012
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This ARTICLE 19 policy paper proposes a set of recommendations to be used for interpreting and implementing those international obligations which prohibit all advocacy that constitutes incitement to discrimination, hostility or violence (“incitement” or “incitement to hatred”), as mandated by Article 20(2) of the International Covenant on Civil and Political Rights (“ICCPR”). The recommendations also apply to some of the provisions contained in Article 4 of the International Convention on Elimination of All Forms of Racial Discrimination (“ICERD”).
The interpretation and implementationof these and other related provisions are the subject of a great deal of confusion, globally as well as nationally. This confusion frequently results in vague and overly broad prohibitions of incitement innational law and also in inconsistent and restrictive interpretation.
To dispel this confusion, ARTICLE 19 offers a detailed set of recommendations on how States should interpret their respective obligations. With the aim of moving towardsgreater consensus on this issue, it also formulates a comprehensive test that can be used to review cases and determine whether certain speech reaches the threshold of incitement to hatred.
ARTICLE 19 believes that the obligations to prohibit incitement require States to introduce a variety of measures as sanctions in cases of incitement. The selection of sanctions in a particular case should be guided by an assessment of the level of severity of the offence. In cases of incitement, States should primarily employ a range of sanctions within civil and administrative law. Only in the most serious cases, when the authorities conclude that the particular incitement reached the highest level of severity, should criminal sanctions be imposed; criminal law should not be the default response to instances of incitement if less severe sanctions would achieve the same effect. ARTICLE 19 recommends other measures that States should adopt in order to ensure uniform and consistent implementation of their obligations, as well as measures that should be offered to victims of incitement.
ARTICLE 19 hopes that by establishing clear boundaries between permissible and impermissible expression, and by providing robust criteria to assist in this determination, this paper will serve the purpose not only of a legal and policy review but also of contributing to ensuring that all people are able to enjoy both the right to freedom of expression and the right to equality.