CYIL vol. 14 (2023)

CYIL 14 (2023) PROSECUTING “HATE SPEECH” IN INTERNATIONAL CRIMINAL JUSTICE … International criminal justice instruments have criminalised words and speeches that are uttered which do meet specific legal character: as a mode of participation (instigation) and as an inchoate crime (direct and public incitement to commit genocide). Even though the judgments contextualised the presence of hate speech, the judges did not define what hate speech is. None of the Statutes mentioned hate speech. The prosecution of those provisions has been based on the legal characterisation and classification and not the unyielding pressure mounted by scholars and the broader civil society. In essence, the notion of hate speech is not a creation of any legal instrument. Neither is it a prosecutable offence in international criminal justice. Tribunals have used the concept of hate speech to engage in a constructive and meaningful dialogue with scholars in the social sciences to understand words in a context (historical, cultural, political and economic) and be able to construct some mental sketch where they see a vivid picture of how words, gestures and speeches brought about a result (mass atrocities). Clearly, the decision to limit the discussion to interpret only what was in those legal instruments, even though disappointing, in my view, is logical. Hate speech, not being recognised or created by law as a standalone crime, does not deserve the attention of the judges if seen from the perspective of, at least, the letter of the law. Sovereignty is a fundamental pillar of international law: one of those principles that has been firmly entrenched therein and recognised as forming part of the constitutional principles of international law. The principle of sovereignty comes with three different but inter-related dimensions: legislative sovereignty, judicial sovereignty and executive sovereignty. Legislative sovereignty dwells on the fact that states are empowered to enact legislation that is binding on their respective territories. In exercise of that prerogative, states have the power to decide on what conduct constitutes crime, and what sanction to mete to that conduct. With regards to human rights law, states are empowered to enter reservations which limit the legal effect of specific provisions to that particular State Party. Looking at domestic criminal law of states, one would notice the stark and nuanced differences that may exist in the way certain acts or conducts are criminalised. The definitions of substantive crimes are quite different. If we accept variations in formulations or definitions of crimes in domestic legal systems, then, we ought to approach the definition of hate speech in like manner: allowing states to, within the remit of their inherent power in international law, define what they would consider as hate speech, rather than seek a definition that is universally acceptable: an unrealistic venture which, unfortunately, compounds the whole issue.

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