CYIL vol. 14 (2023)

HARALD CHRISTIAN SCHEU CYIL 14 (2023) stated that States Parties are under an obligation to take the necessary legislative measures prohibiting the advocacy of national, racial, or religious hatred that constitutes incitement to discrimination. According to the HRC, Article 20 requires States Parties to provide for an appropriate sanction in the event of a violation. In 2011, almost three decades after the adoption of General Comment No. 11, the HRC in 2011 revisited its reflections on Article 20 ICCPR in its General Comment No. 34 on Article 19 ICCPR (freedoms of opinion and expression). 11 Regarding the relationship between Articles 19 and 20 ICCPR, the HRC noted that they are compatible and complementary, as all the acts addressed in Article 20 are also subject to restriction under Article 19(3) ICCPR. However, unlike other restrictions covered by Article 19 ICCPR, the acts addressed in Article 20 ICCPR require a prohibition by law. In this sense, the HRC understands Article 20 as a lex specialis in relation to Article 19 ICCPR. Neither General Comment No. 11 nor General Comment No. 34 use the terms “hate/ hatred” or “hate speech”. The Human Rights Council also failed to provide a definition of these terms in the first individual cases in which questions were raised under Article 20 of the ICCPR. It may well be that in the cases of J.R.T. and the W.G. Party v Canada , 12 Robert Faurisson v France , 13 and Malcolm Ross v Canada 14 the anti-Semitic nature of the authors’ remarks was so evident that the HRC saw no need for a detailed analysis. For example, in the case of J.R.T. and the W.G. Party , the HRC concluded that “the opinions which Mr. T. seeks to disseminate (…) clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under Article 20 (2) of the Covenant to prohibit”. In the above cases, the HRC was mainly concerned with explaining the relationship between Articles 19 and 20 ICCPR. Whereas in the case of J.R.T. and the W.G. Party, Article 20 ICCPR was construed as an admissibility criterion (similar to Article 5 ICCPR) and the author of the impugned expressions was deprived of his legal standing, the cases of Robert Faurisson and Malcolm Ross were dealt with on the merits when the HRC relied exclusively on the limitation clauses under Article 19 ICCPR, in particular respect for the rights or reputations of others. 15 From a conceptual perspective, it should be noted that in the case of Robert Faurisson, the HRC found that, in the light of Article 19 ICCPR, restrictions on freedom of expression may relate not only to the interests of individuals, but also to those of the community as a whole. This consideration highlights the importance of anti-hate speech law as a part of international minority protection. Equally important, the HRC indirectly confirmed the right of the Jewish community “to live free from fear of an atmosphere of antisemitism”. The issue of definition became more pertinent in some cases decided by the HRC more recently. Two communications submitted against Denmark in 2006 and 2009 raised the question of the extent to which criticism of Islam falls under Article 20 ICCPR. Following the publication of a number of cartoons depicting the Islamic prophet Muhammed in the Danish newspaper Jyllands-Posten in 2005, the authors of a communication complained that they had been denied an effective remedy for incitement to hatred against Muslims

11 CCPR/C/GC/34 (2011). 12 Communication No. 104/1981, CCPR/C/OP/2 at 25 (1984). 13 Communication No. 550/1993, CCPR/C/58/D/550/1993(1996). 14 Communication No. 736/1997, CCPR/C/70/D/736/1997 (2000). 15 For more details, see TEMPERMAN, op. cit., 94–98.

228