CYIL vol. 14 (2023)

HARALD CHRISTIAN SCHEU CYIL 14 (2023) should focus on the harm done to the individual victim or rather to the community. 24 These concerns are arguably relevant to all forms of hate speech. According to Tarlach McGonagle, the term hate speech is “a convenient shorthand way of referring to a broad spectrum of extremely negative discourse stretching from hatred and incitement to hatred to abusive expression and vilification”. 25 Rather than using a simple binary model of hate and non-hate, it would probably be more appropriate to employ scales of hate speech intensity, such as the six point hate speech intensity scale developed by Babak Bahador and Daniel Kerchner in 2019. 26 Some fundamental concerns about the concept of hate speech have been also expressed by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. In his 2012 report on hate speech and incitement of hatred, 27 he painted a very complex picture of different elements and aspects of hate speech. Drawing on the terminology used in Article 20 ICCPR, the report provides brief definitions of terms such as hatred, advocacy, incitement, discrimination, hostility, and violence. As if some of these concepts were not ambiguous enough, the Special Rapporteur considered that a number elements are essential in determining whether an expression constitutes incitement to hatred: • and careful consideration by the judiciary of the context in which hatred was expressed. According to the Special Rapporteur, international law prohibits some forms of speech for their consequences, and not for their content as such, because what is deeply offensive in one community may not be so in another. Therefore, a thorough contextual assessment must be carried out examining, for example, existing patterns of tension between religious or racial communities, discrimination against the target group, the tone and content of the speech, the person inciting hatred, and the means of disseminating the expression of hate. Given this relativisation of the concept of hate speech, it is not surprising that the Special Rapporteur, fully in line with his mandate, focused mainly on freedom of expression and pointed to examples of problematic laws against hate speech that are not in line with international norms and standards. 3. Hate speech and the Framework Convention for the Protection of National Minorities In absence of a universally accepted definition of hate speech in modern international law, international institutions may feel compelled to close this gap by introducing such definition in their own jurisprudence. The Advisory Committee is undoubtedly one of the international monitoring bodies with the greatest expertise in the field of minority protection. Within its broad mandate, which includes issues of language use, education, and participation, the 24 D’SOUZA, T., GRIFFIN, L., WALT, D., SHACKLETON, N., Harming women with words: The failure of Australian law to prohibit gendered hate speech. University of New South Wales law journal , 2018, 41(3), pp. 939–976, 958. 25 MCGONAGLE, T. The Council of Europe against online hate speech: Conundrums and challenges. Council od Europe Expert Paper – MCM(2013)005, Belgrade, 2013 (available at https://rm.coe.int/168059bfce). 26 BAHADOR, B., KERCHNER, D., Monitoring Hate Speech in the US Media. Working Paper. Washington: The George Washington University, 2019. Available at Monitoring-Hate-Speech-in-the-US-Media-3_22 z0h5kk.pdf (cpb-us-e1.wpmucdn.com). 27 A/67/357. • real and imminent danger of violence resulting from the expression; • intent of the speaker to incite discrimination, hostility, or violence;

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