CYIL vol. 14 (2023)

CYIL 14 (2023) PROSECUTING “HATE SPEECH” IN INTERNATIONAL CRIMINAL JUSTICE … to freedom of expression, history and culture, and the use of criminal law to prohibit and criminalise specific kinds of speeches such as Holocaust trivialisation or denials). 7 In view of the divergent approaches by States, what can be extrapolated therefrom? Arguably, such practices suggest the existence of a typology of “hate speech” which is quite important for the imposition of criminal responsibility at domestic level. Lastly, the non-utilisation of the phrase “hate speech” in international instruments may itself pose not only an issue of genesis and utilisation but that of definition as well: what really is “hate speech”? 8 The fluidity of this concept and the reticence exuded by international instruments on this topic may be indicative of an unresolved legal maze. From the foregoing, and without delving into states’ approaches in defining hate speech, this chapter investigates the typology of “hate speech”, and argues that in view of states’ practices, arguably, the prohibition of “hate speech” has not attained the status of customary international law. 9 Prior to making that argument, this chapter looks into some philosophical complexities that relate to the prosecution of “hate speech” in international criminal law and justice. Looking at the prosecution of hate speech in international criminal law, this paper explores some of the notional challenges that have been encountered. Curled from the jurisprudence of international criminal tribunals, the paper discusses some of those challenges, arguing that the absence of a definition of what constitutes hate speech is part of the problem, but more importantly, the exclusion or prohibition of specific kinds of speeches does not automatically mean they qualify as criminal speeches, thereby necessitating a calibration of different kinds of hate speeches (typology of hate speech). As further argued in this paper, the exclusion of specific kinds of speeches has, unfortunately, not attained the status of customary international law. The paper commences with a synopsis of the notion of hate speech in the field of international criminal justice. This is followed by a compendious analysis of the right to freedom of expression in international law and the limits thereto. This part paves way for an exploration into the typology of hate speech where it is argued that in view of the ratifications and reservations entered into by States Parties to the ICCPR, it is still contended that mere hate speech, despite its exclusion from legal protection, has not yet attained the status of customary international law. The last part is the conclusion where some pertinent recommendations are made to resolve this complex legal maze. 7 On these issues, numerous Western European countries have enacted municipal legislation regulating the categorisation, denial or trivialisation of the Holocaust, see the following: HENNEBEL, L. and HOCHMANN, T. ‘Introduction: Questioning the Criminalization of Denials’ in HENNEBEL, L. and HOCHMANN, T. (eds), Genocide denials and the Law (Oxford University Press 2011). pp xvii-li; LASSON, K. ‘Defending Truth: Holocaust Denial in the Twenty-First Century’ in HENNEBEL, L. and HOCHMANN, T. (eds), Genocide Denials and the Law (Oxford University Press 2011) pp. 109–154; and KAHN, R., A. ‘Holocaust Denial and Hate Speech’ in HENNEBEL, L. and HOCHMANN, T. (eds), Genocide Denials and the Law (Oxford University Press 2011) pp. 77–108. 8 As argued below, the phrase itself has never been used in any international instrument. However, it has been the focus of legal research, especially on three fronts: international human rights law; international criminal law and domestic constitutional and human rights law. 9 On whether the exclusion of specific kinds of speeches as in Article 20 of the ICCPR amounts to customary international law, see the discussion below, especially with regards to reservations to Article 20 of the ICCPR.

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