CYIL vol. 14 (2023)

CYIL 14 (2023) PROSECUTING “HATE SPEECH” IN INTERNATIONAL CRIMINAL JUSTICE … accessory to those atrocities, Streicher was as criminally liable like the others who formulated, ordered, or executed those crimes. In retrospect, the notion of hate speech did not feature at the trial. Neither in the judgment. Yet, as seen in the judgment of the Trial Chamber of the ICTR, Streicher’s conviction would guide the Tribunal in underscoring the contribution of authors of hate speech to the formulation and perpetration of mass atrocities. Of the few lessons learned from the Nuremberg judgments, one remains critical in this discussion: by putting the contents of the speeches and publications in context and highlighting the effects they had on the minds of people (inflated and fuelled hostile sentiments) and how the broader German citizenry got involved in the commission of crimes against the Jews, the Tribunal brought to the fore the valuable role played by (incendiary) speeches in the commission of mass atrocities. Unfortunately, the Tribunal did not infuse into its judgment any mention of hate speech. Beyond the IMT, Nuremberg, two major milestones in this regard: the establishment of the two UN ad hoc Tribunals, the ICTY and the ICTR. These developments, on the international plane, were quite significant on at least one dimension: their Statutes were a greater expansion of the modes of liability recognised at Nuremberg, amongst which was instigation. However, the two Statutes were significant departures from the Charter of the IMT, Nuremberg, on a few aspects: the crimes over which they had jurisdiction, and secondly, the inclusion of direct and public incitement to commit genocide therein, which, to some extent, accounts for the complexity in prosecuting hate speech. 2.2 Hate speech as an inchoate crime The Genocide Convention amongst other things, criminalised the (inchoate) offence of direct and public incitement to commit genocide. The Statutes of the ad hoc Tribunals, in view of the role played by the media and speeches uttered by some influential personalities, replicated this provision of the Genocide Convention: Article 4(3)(a)-(e) of the Statute of the ICTY; Article 2(3)(a)-(e) of the Statute of the ICTR. The Rome Statute of the ICC is not different. 11 Of key importance is the way the two ad hoc Tribunals interpreted the notion of direct and public incitement to commit genocide as stipulated in those Statutes. Based on the jurisprudence of the Trial and Appeals Chambers of the ICTY and ICTR, the following can be said regarding this: first, direct and public incitement to commit genocide is an inchoate crime. In other words, criminal responsibility would be imposed on an accused for direct and public incitement to commit genocide even if such incitement did not actually lead to the commission of genocide. 12 In The Prosecutor v Jean-Paul Akayesu , the Trial Chamber reflected on the work of the delegates when drafting the Genocide Convention 11 See Articles 6 and 25(3)(a)-(f) of the Rome Statute of the ICC. 12 The Prosecutor v Jean-Paul Akayesu , Judgment, Case No. ICTR-96-4, T. Ch. I, 2 September 1998, para 562; The Prosecutor v Georges Rutaganda , Judgment, Case No. ICTR-96-3-T, T. Ch. I, 6 December 1999, para 38; The Prosecutor v Alfred Musema , Judgment, Case No. ICTR-96-13-T, T. Ch. I, 27 January 2003, para 120; The Prosecutor v Eliézer Niyitegeka , Judgment, Case No. ICTR-96-14-T, T. Ch. I, 16 May 2003, para 431; The Prosecutor v Juvénal Kajelijeli , Judgment, Case No. ICTR-96-44-T, T. Ch. II, 1 December 2003, para 855; Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v The Prosecutor , Appeal Judgment, Case No. ICTR-99-52-A, Appeal Chamber, 28 November 2007, paras 678–679; The Prosecutor v Simon Bikindi , Judgment, Case No. ICTR-01-72, T. Ch. III, 2 December 2008, para 419; and The Prosecutor v Callixte Kalimanzira , Judgment, Case No. ICTR-05-88-T, T. Ch. III, 22 June 2009, para 515.

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