CYIL vol. 14 (2023)

CYIL 14 (2023) PROSECUTING “HATE SPEECH” IN INTERNATIONAL CRIMINAL JUSTICE … his role in the mayhem perpetrated by the Nazi Regime. Making and delivering a judgment cognisant of such a historical context is a reminder of the role words and speeches can play in mass atrocities. Thirdly, the characterisation of instigation and direct and public incitement to commit genocide has been very helpful. It is now settled that instigation as a mode of participation extends to every crime over which the Tribunal had jurisdiction, and direct and public incitement to commit genocide would require that the incitement is direct and public and for the crime of genocide only. Despite the colossal strides made by the Trial and Appeal Chambers on instigation and direct and public incitement to commit genocide, a fundamental gap that was not filled was the formulation and postulation of a succinct definition of what is hate speech. More than likely, the judges limited themselves to the task of interpreting the law as written: instigation and direct and public incitement to commit genocide were defined and delineated because they featured in those instruments. Hate speech, unfortunately, did not feature in either of the two instruments and therefore, did not warrant a judicial intervention for the development of a definition. Furthermore, the jurisprudence of the Trial and Appeal Chambers of the ad hoc Tribunals has provided much primary data for legal scholars to build their academic expositions on. Even though the Trial and Appeal Chambers of the two ad hoc tribunals have acknowledged the contributions of hate speech to the planning, preparation and commission of mass atrocities, the failure to formulate a working definition of what is hate speech puts academic voices in divergence rather than convergence. And as has been seen from the scholarly voices, with the numerous definitions put forward, one can say that hate speech is one of those socio legal concepts which remains much easier to describe than to define. However, those words, whether constituting instigation or direct and public incitement to genocide, were never prosecuted as hate speech. They were prosecuted as instigation and/ or direct and public incitement to commit genocide. Hate speech, whatever it is or was, would have undergone some conceptual metamorphosis and be fitted into either or both of those concepts. Despite the foregoing analysis, one would have expected that the Trial and Appeal Chambers endeavoured to consider the possibility of words and speeches that amounted to direct and public incitement to commit genocide if they would amount to instigation as a mode of participation too. From a comparative perspective, the statistics unfold that the former was prosecuted more than the latter. A few analytical contentions can be made on those statistics: direct incitement to genocide could also qualify as instigation to genocide under the imposition of individual criminal responsibility – an approach and position which no Trial or Appeals Chamber took. On a broader dimension, it can be argued that the Trial and Appeals Chamber of the ad hoc Tribunals have generated jurisprudence on instigation as a mode of participation and direct and public incitement to genocide as an inchoate crime. On a direct analysis of hate speech that touches on the definition, elements and effects, there is a conspicuous paucity. Such a gap begs some complex legal questions: first, where does hate speech, whether as a notion or crime, reside in international criminal law instruments? And if such exists, where, and what really does it mean? If not, then, does prosecuting instigation and direct and public incitement to commit genocide amount to prosecuting hate speech? In conclusion, a few remarks can be made. A careful look at international instruments reveals some stunning observations. First, hate speech does not feature therein: the words “hate

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