CYIL vol. 14 (2023)

AVITUS A. AGBOR CYIL 14 (2023) As observed by Judge Meron, the prosecution in Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v The Prosecutor did not appeal on this important issue. Had the Trial Chamber erred, the Appeals Chamber, unfortunately, found no reason to intervene to correct the perceived error: the result, obviously, lends credence to the view that the judgment by the Trial Chamber in the case of Prosecutor v. Dario Kordić and Mario Čerkez is an accurate reflection of international law on hate speech and remains the law until it is overturned. One can argue, therefore, that, looking at the reservations made by States Parties to the provisions of the ICCPR, the ICERD; bearing in mind the drafting history of the Genocide Convention ; and reflecting on the Trial Chamber judgment Prosecutor v. Dario Kordić and Mario Čerkez , it becomes very clear that there is no settled norm on the criminalisation of “mere hate speech” in customary international law. A textual analysis of the Statute of the ICTY and Statute of the ICTR would reveal that they neither ban nor criminalise hate speech as hate speech. In other words, hate speech is not a “standalone” crime under both instruments. The only instances where hate speech features in those instruments are where hate speech amounts to direct and public incitement to commit genocide and instigation as a mode of participation. With an understanding of legal principles such as fair notice and legality, the ad hoc Tribunals prosecuted hate speech that constituted direct and public incitement to commit genocide and/or instigation as a mode of participation. 5. The typology of hate speech in international criminal law From the foregoing analysis, and without venturing into another delineation of hate speech, it can be argued that there are at least three categories of hate speech in international criminal law: first, “mere hate speech” that is not criminal; secondly, hate speech that qualifies as the inchoate crime of direct and public incitement to commit genocide, and thirdly, hate speech that amounts to instigation to serious crimes in international law: a mode of participation. The second and third categories are criminal, and have been prosecuted in international criminal law, with the jurisprudence of the ad hoc Tribunals assisting in understanding the substance of what they are. 6. Conclusion In conclusion, a few remarks can be made. A careful look at international instruments reveals some stunning observations. First, hate speech does not feature therein. In prescribing specific kinds of speeches, the ICCPR is clear. The words “‘hate speech” are not in use. Even though advocacy for hatred is prohibited and may amount to hate speech, it does not mean that hate speech is defined by looking at advocacy only. 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 refrain from leading on the formulation of a definition of a concept not found in the applicable legal text before them, then, that could be understood since it fell beyond the remit of their authority. Judicial reticence, on this instance and issue, most certainly, is quite justifiable and understandable.

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