CYIL vol. 14 (2023)

AVITUS A. AGBOR

CYIL 14 (2023)

2. Hate speech in the domain of international criminal justice From the Charter of the IMT, Nuremberg, to the Rome Statute of the International Criminal Court (ICC), and with an understanding of the case-law developed by the different Tribunals, there are some pertinent aspects relating to “hate speech” that are worthy of discussion: first, “hate speech” may qualify as a mode of participation in the planning, preparation or execution of serious crimes in international criminal law. Secondly, “hate speech” may also qualify as an inchoate crime: direct and public incitement to commit genocide. Thirdly, where such “hate speech” attracts criminal responsibility for instigation as a mode of participation and the inchoate crime of direct and public incitement to commit genocide, it may raise the question on whether it is legal to use same facts for different charges, otherwise referred to the Latinism concursum delictorium . 2.1 Hate speech as a mode of participation in serious crimes in international law A specific legacy of the IMT, Nuremberg, was the criminalisation of the different modes of participation in the crimes over which the IMT, Nuremberg, had jurisdiction. Shaped by domestic criminal law of the various legal systems, the criminalised modes of participation included the key forms of indirect participation, specifically, leaders, organisers, instigators and all other forms of accomplices who took part in the formulation or execution of a common plan or conspiracy. 10 Looking at the various modes of participation from a broad perspective, and accessorial liability in particular, instigation featured in the Charter as a means of participation that would incriminate any individual who would have instigated any of the crimes over which the IMT, Nuremberg, had jurisdiction. Numerous individuals who were tried at the Tribunal would have participated in some way in the formulation or execution of a plan or conspiracy to commit any or all the crimes over which the Tribunal had jurisdiction. Civilian and military personnel in the Nazi Regime (the Nazi Party and its affiliates) were docked before the Tribunal. In addition to those individuals was an individual who was not within the top-ranking civil and military personnel. Streicher, as has been argued, dedicated his talents to the broader propaganda machinery in Germany through the publication of a weekly anti-Semitic magazine established for the dehumanization and victimisation of Jews across Germany. Standing trial for his role in the formulation and execution of atrocities against specific groups of people, the Tribunal found him guilty of instigation, sentenced him to death by hanging. Der Stürmer was nothing but a catharsis for the emission of smear campaign against the Jews. Labelled as the worst of the anti-Semites, his speeches, articles and cartoons were both distasteful and incendiary that they offended even other members of the Nazi Regime. Streicher was not in Hitler’s cabinet. Neither was he a military officer. He took no part in formulating or executing the plans of the Nazi Regime. Neither did he invade any of the countries. The prosecutor’s argument, however, was that his actions and speeches were very significant and therefore, ought to be included in the list of major war criminals. Looking at the publications and listening to the speeches, it was indisputable that Streicher incited murder and other gruesome acts: that made him no different from the authorities who ordered the crimes against Jews. As an

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10 Proviso to Article 6(c) of the Charter of the IMT, Nuremberg.