CYIL vol. 14 (2023)

CYIL 14 (2023) HATE SPEECH – AN UNCLEAR LEGAL CONCEPT IN THE UNCLEAR PRACTICE … within the meaning of Article 20 ICCPR. 16 They feared that Muslim and Arab minorities in Denmark would increasingly become victims of incitement and discrimination by the majority if no sanctions were imposed on the illustrators. The Danish government objected that the publication in question was not made for the purpose of advocating national, racial or religious hatred, but to initiate a debate on the problem of self-censorship. According to the Danish government, persons manifesting their religion, whether they are in the majority or the minority, cannot reasonably expect to be exempt from articles or papers intended to launch a critical debate on their religion. It is in fact regrettable that the HRC could not pronounce on these two different positions, as the communication was declared inadmissible for failure to exhaust domestic remedies. In the case of Fatima Andersen v. Denmark, 17 the HRC had to deal with public statements by members of the Danish Popular Party comparing Muslim headscarves to the Nazi symbol of the swastika. The author of the communication felt personally insulted by the statement. According to her, in Denmark, freedom of speech always takes precedence over the right not to be subject to hate speech. She stated that the Danish authorities had failed to recognise the need to protect Muslims from hate speech and thus prevent future hate crimes against members of this religious community. With regard to the nature of the impugned statements, the Danish government argued that advocacy of national, racial or religious hatred is not in itself sufficient to fall under Article 20 ICCPR, as such advocacy must constitute incitement to discrimination, hostility or violence. Although all domestic remedies had been exhausted in this case, the HRC ultimately refused to address the merits of the case, because the author had failed to demonstrate that she was a victim within the meaning of the ICCPR. In the HRC’s view, it was not clear whether the impugned remarks had any particular consequences for the author of the communication. 18 The case of M.R., A.B.S. and N.A. v. The Netherlands 19 has the potential to become the HRC’s leading case on hate speech as the Committee in this case, which concerned alleged anti-Muslim hate speech by a Dutch politician, rendered a detailed decision on the merits. Regarding the relationship between Articles 19 and 20 ICCPR, the HRC recalled that Article 20 “is crafted narrowly in order to ensure that other equally fundamental Covenant rights, including freedom of expression under Article 19, are not infringed”. According to the HRC, the term “prohibited by law” does not expressly require the imposition of criminal sanctions but includes civil and administrative as well as criminal penalties. With reference to an argument raised by the Dutch government, the HRC seems to support the conclusion that “in the difficult area of hate speech, each set of facts is particular and must be assessed by a court or impartial decision-maker on a case-by-case basis, according to its own circumstances and taking into account the specific context”. In light of the relevant provisions of the Criminal Code and the Civil Code and the specific investigation carried out in the case in question, the HRC concluded that there had been no violation of Article 20 ICCPR. 16 Kasem Said Ahmad and Asmaa Abdol-Hamid v. Denmark , Communication No. 1487/2006, CCPR/ C/92/D/1487/2006 (2008). 17 Communication No. 1868/2009, U.N. Doc. CCPR/C/99/D/1868/2009 (2010). 18 For the same reason, in 2013 the HRC also declared inadmissible the communication of A.W.P. v Denmark (CCPR/C/109/D/1879/2009). 19 Communication No. 2124/2011, CCPR/C/117/D/2124/2011 (2016).

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