CYIL vol. 14 (2023)

CYIL 14 (2023) PROSECUTING “HATE SPEECH” IN INTERNATIONAL CRIMINAL JUSTICE … of the disjunctive word “or” rather than a conjunctive word “and”. The Trial and Appeals Chambers of the ICTY and ICTR construed those five modes of criminal participation, and held that for criminal responsibility to be imposed on accused, it must be established that his or her mode of participation substantially contributed to the commission of the crime. 16 The requirement of substantial contribution was argued as a flawed understanding of the wording of Article 6(1) of the Statute of the ICTR, forming the basis of some critical research informed by common-law principles on inchoate crimes and the wording of the relevant portions of the Statute of the ICTR. 3. Hate speech in international human rights law Notional and philosophical intricacies in the prosecution of hate speech do not reside in the domain of international criminal law and justice only. The counter-argument raised by authors of hate speech came within the purview of the right to freedom of expression. 17 Probably, the failure by international human rights law instruments to define what constitutes hate speech, and also provide an exhaustive list of what kinds of speeches are excluded from legal protection, has also triggered some fundamental debates: first, are the categories of speeches stipulated in Article 20 of the ICCPR exhaustive in terms of excluding from legal protection specific categories of speeches? Secondly, understanding the reservations to Article 20 of the ICCPR entered into by States Parties to the ICCPR, can it be argued that the exclusions in Article 20 of the ICCPR do or do not constitute customary international law? Thirdly, in the unresolved legal uncertainty, rendered more complicated by the numerous and diverse academic voices on hate speech influenced by domestic legal experiences, is there a universally acceptable definition of hate speech? This section explores the international legal framework regulating the right to freedom of expression in international law, but with more focus on the contents of Article 20 of the ICCPR. 3.1 The right to freedom of expression in international and regional human rights law Among the numerous political rights entrenched in international and regional human rights instruments is the right to freedom of expression. 18 The UDHR, even though soft law, constitutes the first endeavour made by the international community to grant recognition and protection to the right to freedom of expression in international law. Even though only a declaration, Article 19 of the UDHR formed the basis upon which freedom of expression will further be recognised and protected in the ICCPR. The UDHR does not contain any express limitation to the right to freedom of expression. However, read in context of the Preamble to the UDHR, one must consider the wording of Article 19 alongside the need to prevent discrimination and promote the inherent dignity of every individual. Sequel to the UDHR is the ICCPR. The right to freedom of expression is stipulated in Article 19 of the ICCPR. 19 Article 19 of the ICCPR is, without doubt, the foremost legally binding provision in international law that gave recognition and protection to freedom of expression 16 See footnote 14. 17 See, for example, The Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze , Judgment, Case No. ICTR-99-52-T, T. Ch. I, 3 December 2003, paras 983–999. 18 At the international level, the right to freedom of expression is recognised and protected in three key instruments: the UDHR; the ICCPR; and the ICERD. 19 See Article 19 of the ICCPR.

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