CYIL vol. 14 (2023)

AVITUS A. AGBOR

CYIL 14 (2023)

1. Introduction On the one hand, international human rights law recognises the right of individuals to form, hold and express their opinions, beyond frontiers, through any medium. 1 On the other hand, some kinds of statements may amount to incitement: 2 in some legal jurisdictions, this may qualify as an inchoate crime for which criminal responsibility can be imposed. Within the sphere of international criminal law and justice, specific kinds of speeches such as direct and public incitement to commit genocide are prohibited. 3 The content of speeches therefore highlights the interlink between international human rights law where the right to freedom of expression is recognised and guaranteed and international criminal law and justice where specific kinds of speeches are not only prohibited but would attract criminal responsibility. Arguably, the notion of “hate speech” in international criminal law and justice can be said to be of a sui generis character for some reasons. First, it could amount to a mode of participation (instigation). 4 Secondly, it may qualify as an inchoate crime (direct and public incitement to commit genocide). 5 Thirdly, such “hate speech”, when qualifying as both a mode of participation (instigation) and an inchoate crime (direct and public incitement to commit genocide) may evoke the notion of concursus delictorium : the legality of using same facts for different charges (discussed below). Beyond these unique features exuded by “hate speech” reside some layers of complexities: first and within the realm of international and regional human rights law, the debate rages as to whether “hate speech” falls beyond the spectrum of legally protected speech on the international law, thereby necessitating a delineation of what really is the substantive content of Article 20 of the ICCPR. 6 In addition, considering the obligations imposed on States Parties to the ICCPR, and bearing in mind the nature and extent of reservations and declarations entered into by States Parties to Article 20 of the ICCPR, could it be said that the prohibition of hate speech has attained the status of customary international law? An attempt is made to answer this question. The second dimension of this complexity relates to the socio-legal practices within States (national legal instruments such as constitutions and the recognition of the right 1 Several international and regional human rights instruments recognise and guarantee the right to freedom of expression. For example, the International Covenant on Civil and Political Rights (ICCPR), Article 19 and the Universal Declaration of Human Rights (UDHR), Article 19. See also HOWIE, E. ‘Protecting the human right to freedom of expression in international law’ 20 International journal of speech-language pathology 12–13 and O’FLAHERTY, M. ‘Freedom of expression: article 19 of the international covenant on civil and political rights and the human rights committee’s general comment no 34’ 12 Human Rights Law Review 627–654. 2 TIMMERMANN, W., K. ‘Incitement in international criminal law’ 88 International Review of the Red Cross 823–852 and TIMMERMANN, W. K. ‘The relationship between hate propaganda and incitement to genocide: a new trend in international law towards criminalization of hate propaganda?’ 18 Leiden Journal of International Law 257–282. Seen through a legal lens, discussions on, and contentions about the entire notion of hate speech emanate from this premise: specific kinds of speeches that have the potential to result in violence. 3 See, for example, the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), Article III(c). 4 Numerous international instruments have recognised instigation as a mode of participation: see, for example, Article 6(c) of the Charter of the IMT, Nuremberg; Article 5(c) of the Charter of the International Military Tribunal for the Far East (Charter of the IMTFE), Tokyo; Article 7(1) of the Statute of the ICTY; and Article 6(1) of the Statute of the ICTR. See also Article 25(3)(b) and (d) of the Rome Statute of the ICC. 5 See Article II(3)(c) of the Genocide Convention; Article 4(3)(c) of the Statute of the ICTY; Article 2(3)(c) of the Statute of the ICTR and Article 25(3)(b) and (d) of the Rome Statute of the ICC. 6 Article 20 of the ICCPR mentions kinds of excluded speeches.

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