CYIL vol. 14 (2023)

CYIL 14 (2023) PROSECUTING “HATE SPEECH” IN INTERNATIONAL CRIMINAL JUSTICE … domestic laws to prohibit “mere hate speech” (which can be subsumed under the category of advocacy for hatred within the purview of Article 20 of the ICCPR and Article 4 of the ICERD) are still divergent and unsettled, with different national legal instruments in place to affirm political liberties broadly and the right to freedom of expression specifically. Therefore, the absence of a consensus amongst States Parties on the prohibition and criminalization of mere hate speech in international law itself is indicative of the fact that there is yet no norm under customary international law that makes “mere hate speech” criminal. Arguably, one can bolster this conclusion by looking at the drafting history of the Genocide Convention. Draft Article III of the Genocide Convention was worded as follows: All forms of public propaganda tending by their systematic and hateful character to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act shall be punished. 55 The commentary to Draft Article III was clear: the provision was aimed unequivocally at “mere hate speech”, rather than being concerned with the inchoate offence of direct and public incitement to commit genocide under the purview of draft article II. 56 The final text of the Genocide Convention, as observed over the decades, does not include the draft version of Article III. Neither does it capture and include the proposals made by the then Soviet delegation that sought for the codification of a ban on “mere hate speech”. 57 The outcome was the adoption of a Genocide Convention that bans only speech that amounts to or constitutes direct and public incitement to commit genocide. The Genocide Convention is reticent on any hate speech that does not meet that statutory threshold. Even if the foregoing discussion on the texts of international instruments and the unsettled position that Article 20 of the ICCPR and Article 4 of the ICERD as having risen to a customary norm of international law remains unsatisfactory or lacks persuasion, one must consider the jurisprudential position of the international criminal tribunals. In this regard, the language of the Trial Chamber in the case of Prosecutor v. Dario Kordić and Mario Čerkez becomes very helpful and instructive: The Trial Chamber notes that the Indictment against Dario Kordić is the first indictment in the history of the International Tribunal to allege hate speech as a crime against humanity. The Trial Chamber, however, finds that this act, as alleged in the Indictment, does not by itself constitute persecution as a crime against humanity. It is not enumerated as a crime elsewhere in the International Tribunal Statute, but most importantly, it does not rise to the same level of gravity as the other acts enumerated in Article 5. Furthermore, the criminal prohibition of this act has not attained the status of customary international law. Thus to convict the accused for such an act as is alleged as persecution would violate the principle of legality. 58 55 The Secretary-General, Draft Convention on the Crime of Genocide, at 7, Article III, U.N. Doc. E/447 (26 June 1947). 56 The Secretary-General, Draft Convention on the Crime of Genocide, at 7, Article III, U.N. Doc. E/447 (26 June 1947) at page 32. 57 See U.N. Econ. &oc. Council, 5 April – 10 May, 1948, Report of the Ad Hoc Committee on Genocide, at page 9, U.N. Doc. E/794 (24 May 1948). 58 Prosecutor v. Dario Kordić and Mario Čerkez , Judgment, Case No. IT-95-142-T, T. Ch., 26 February 2001, para 209 (citations have been omitted).

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