CYIL vol. 14 (2023)

AVITUS A. AGBOR CYIL 14 (2023) categorization of hate speech: “mere hate speech”. 31 Citing the 1969 US case of Brandenburg v Ohio , 32 Judge Meron referred to “mere hate speech” to constitute “speech that, however objectionable, does not rise to the level of constituting a direct threat of violence or an incitement to commit imminent lawless action.” 33 Judge Meron’s (partially) dissenting opinion would (re-)introduce to legal scholarship the issue of “mere hate speech”, aptly defined for the purposes of understanding what it means and where it belongs in the typology of hate speeches in international criminal law and justice. To Judge Meron, “mere hate speech” is not criminal. To buttress this argument, it is important to explore and analyse the current international legal framework. Looking at both international human rights instruments and customary international law, it is argued that “mere hate speech” does not amount to a criminal offence in international criminal law. Even though a soft law instrument that has earned international recognition, the UDHR recognises the right to freedom of expression. 34 Furthermore, the ICCPR grants recognition to the right to freedom of expression in international law. 35 The ICCPR also places specific limits to the right to freedom of expression, 36 making it a right that is not absolute in international law. It also stipulates the exclusion of specific kinds of speeches from legal protection. 37 In addition to the ICCPR, the ICERD also prohibits specific kinds of speeches. 38 States Parties to the foregoing two international human rights instruments (the ICCPR and the ICERD) are under an obligation to prohibit the specific categories of speeches within their domestic legal system. 39 Within the remit of legislative sovereignty enjoyed by all sovereign states within the international community, and in view of the obligations imposed upon States Parties to those international instruments, there is an obligation to ban certain forms of hate speech within their domestic legal systems. States Parties are urged to take legislative measures banning hate speech. However, the obligation to adopt measures prohibiting or banning hate speech within domestic legal systems does not automatically translate to the criminalization of hate speech in international law. The ICCPR and the ICERD simply exclude specific kinds of speeches from legal protection in international law, but do not criminalise them. Furthermore, the criminalization of hate speech is left to States Parties to, within their remit, adopt legislation that defines and criminalises hate speech. On the one hand, there are the international prescripts that exclude or prohibit specific kinds of speeches. Those international prescripts do not go any further to criminalise such kinds of speeches: rather, they leave it to States Parties to use domestic legislation to criminalise such 31 Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v The Prosecutor , Judgment, Case No. ICTR-99

52-A, Appeals Chamber, 28 November 2007. 32 Brandenburg v Ohio , 395 U.S. 444 (1969).

33 Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v The Prosecutor , Judgment, Case No. ICTR-99 52-A, Appeals Chamber, 28 November 2007, para 4, p 375. See also Brandenburg v Ohio , 395 U.S. 444 at 447 (1969).

34 Article 19 of the UDHR. 35 Article 19 of the ICCPR.

36 See Article 19(3)(a)-(b) of the ICCPR. 37 Article 20(1) and (2) of the ICCPR. 38 See Article 4 of the ICERD.

39 Those categories of speeches would include the following: any propaganda for war (Article 20(1) of the ICCPR); any advocacy of “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” (Article 20(2) of the ICCPR). The ICERD, even though focusing on racial discrimination, is more elaborate on the specific obligations borne by States Parties thereto: see Article 4(a)-(c) of the ICERD.

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