CYIL vol. 14 (2023)

CYIL 14 (2023) PROSECUTING “HATE SPEECH” IN INTERNATIONAL CRIMINAL JUSTICE … right to freedom of expression, it is not necessary to delve into that since it adds very little substance to the issue of hate speech. 3.2 The limits to the right to freedom of expression in international and regional human rights law As discussed above, the effect of Article 19(3) of the ICCPR is that it places specific limits to the right of freedom of expression in international law. Regional human rights instruments take a similar approach, with specific limitations stipulated therein. 23 With regards to hate speech, such restrictions pose little or no challenge. However, specific kinds of speeches are excluded from international legal protection. Under Article 20 of the ICCPR, two categories of speeches are prohibited: these are, first, any propaganda for war; 24 and secondly, any advocacy of “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” 25 These prohibitions, unfortunately, have not been incorporated in the domestic laws of most State Parties, for which a few reasons could be advanced: first, internal domestic legal arrangements should determine the domestication of a multilateral treaty, and where the provisions of an international instrument are incompatible with domestic laws such as a constitution, State Parties would rather enter into reservations to such provisions. 26 Secondly, in view of demographic, historical and cultural factors, some State Parties have adopted domestic legislation, including criminal law, to exclude those two kinds of speeches, to which have been added other kinds of speeches such as Holocaust denials or trivialisation or mischaracterisation thereof. Thirdly, responses by specific State Parties are to a greater extent shaped by their history: for example, in Rwanda, denial of the 1994 genocide runs contrary to the fundamental principles of the 2003 Constitution. 27 There exists considerable latitude in the interpretation of the phrase in Article 20(b) of the ICCPR, and for some advanced democracies that endear the right to freedom of expression, the wording of that provision constitutes an affront to their constitutional right to freedom of expression. 28 It is argued below that despite such the prohibition of such kinds of speeches, Article 20 of the ICCPR is disputably not yet of the status of customary international law. 29 The exclusion of hate speech from legal protection is further reaffirmed in the International Covenant on the Elimination of all forms of Racial Discrimination (CERD). 30 4. The categorisation of hate speech and whether the prohibition of mere hate speech has attained the status of customary international law The partly dissenting opinion of Judge Meron in Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v The Prosecutor sheds some light on the issue of hate speech in international criminal justice, and inadvertently sparks the discussion on another 23 See, for example, Article 10(2) of the European Convention on Human Rights; Article 13(4) and (5) of the American Convention on Human Rights; and Article 9(2) of the Banjul Charter. 24 Article 20(1) of the ICCPR. 25 Article 20(2) of the ICCPR. 26 This is discussed below. A glaring example of a State Party that has taken such an approach is the United States of America. 27 See Article 10(1) of the Constitution of Rwanda, 2003. 28 An example is the United States of America. 29 This is discussed below. 30 See, for example, Article 4 of the ICERD.

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