CYIL vol. 14 (2023)

AVITUS A. AGBOR CYIL 14 (2023) speech” are not used. Furthermore, as argued earlier, those same words “hate speech” have not been included in any international instrument as a mode of participation or a standalone substantive crime. If the judges chose to resist the temptation of postulating a definition on hate speech, that approach would be justified for two reasons: first, it was never their mandate to do so and secondly, coming from different legal systems, their experiences may have propelled more dissidence than concurrence. In my view, judicial reticence, on this instance and issue, most certainly, remains quite understandable (and justifiable). International criminal justice instruments have criminalised words and speeches that are uttered which do meet specific legal character: as a mode of participation (instigation) and as an inchoate crime (direct and public incitement to commit genocide). Even though the judgments contextualised the presence of hate speech, the judges did not define what hate speech is. None of the Statutes mentioned hate speech. The prosecution of those provisions has been based on the legal characterisation and classification and not the unyielding pressure mounted by scholars and the broader civil society. In essence, the notion of hate speech is not a creation of any legal instrument. Neither is it a prosecutable offence in international criminal justice. Tribunals have used the concept of hate speech to engage in a constructive and meaningful dialogue with scholars in the social sciences to understand words in a context (historical, cultural, political and economic) and be able to construct some mental sketch where they see a vivid picture of how words, gestures and speeches brought about a result (mass atrocities). Clearly, the decision to limit the discussion to interpret only what was in the Statute, even though disappointing, in my view, is logical. Hate speech, not being recognised or created by law as a standalone crime, does not deserve the attention of the judges if seen from the perspective of, at least, the letter of the law. The notion of instigation as a mode of participation featured in the Charter of the IMT , Nuremberg. Subsequent international instruments have retained this mode of participation. The Streicher case, his trial and conviction, were all based on this mode of participation. Even though not substantially developed at Nuremberg, the jurisprudence of the ICTY and ICTR have been valuable in the interpretation of instigation as a mode of participation. With both Statutes of the ICTY and ICTR worded similarly, criminal responsibility for the acts over which the Tribunals had jurisdiction would be imposed on any individual who “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime…” 15 Based on the wording of the foregoing, it was clear that criminal responsibility would be imposed on any individual who partook in any of the crimes over which the Tribunal had jurisdiction if such an individual planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime. Clearly, any of the modes of participation should result in any of the stages of any of the crimes. The wording on the imposition of criminal responsibility suggests a bifurcated character: first, it must be determined that the accused played a part through any of the stipulated modes of participation; and secondly, such a mode of participation resulted in any of the stages of any of the crimes. By providing three stages (planning, preparation or execution) of all crimes, it widened the dragnet as the prosecutor only needed to prove that the accused’s participation led to any of the stages of the crimes. This was further corroborated by the use

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15 See Articles 7(1) and 6(1) of the Statute of the ICTY and the Statute of the ICTR respectively.