4.3.2 Incitement to discrimination, hostility or violence (hate speech) [ICCPR article 20(2))
Condensed: Any intentional advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Incitement is intended to directly provoke discrimination, hostility or violence but does not actually have to cause such discrimination, hostility or violence; rather the question considered is what the likely impact might be. In determining whether a particular statement constitutes hate speech, measures must be taken to avoid a chilling effect on freedom of expression of unpopular ideas and information. A violation occurs when there is no law prohibiting advocacy of hatred that constitutes incitement to hostility, discrimination or violence, or when the state does not investigate and sanction hate speech when it occurs.
Comprehensive:
Article 20(2) of the ICCPR provides that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’[1] Such advocacy of hatred is often referred to as hate speech.[2] Article 4 of CERD includes a broader provision requiring that ‘all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination ... the provision of any assistance to racist activities’ and participation in ‘organizations, and … propaganda activities, which promote and incite racial discrimination’ be made a criminal offence.[3] A violation occurs when there is no law prohibiting advocacy of hatred that constitutes incitement to hostility, discrimination or violence, or when the State does not investigate and sanction hate speech when it occurs.[4]
The protected group or individuals is not limited to national, racial or religious groups as implied in the wording of article 20(2) of the ICCPR. For example, the CoE has defined hate speech as ‘all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance’.[5] According to the ICTR incitement can be defined as follows:[6] Incitement is defined in Common law systems as encouraging or persuading another to commit an offence. One line of authority in Common law would also view threats or other forms of pressure as a form of incitement. … Civil law systems punish direct and public incitement assuming the form of provocation, which is defined as an act intended to directly provoke another to commit a crime or a misdemeanour through speeches, shouting or threats, or any other means of audiovisual communication
Incitement does not have to directly cause discrimination, hostility or violence, rather ‘the question considered is what the likely impact might be.’[7] Thus, while direct causal impact is not required, there needs to be a strong nexus between the statements and the risk of the prohibited impacts, for example discrimination. Discrimination is ‘any distinction, exclusion, restriction or preference … which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms’[8] based on the prohibited grounds and which may not be justified on legitimate grounds.[9]Hostility and hatred refer to intense and irrational emotions of opprobrium, enmity and detestation towards the target group,[10]. Violence implies the use of physical or verbal force that ‘results in, or is likely to result in, physical, sexual or psychological harm or suffering’.[11]
In determining whether a particular statement constitutes hate speech measures must be taken to avoid a chilling effect on freedom of expression of unpopular ideas and information.[12] (See *interference with opinions held or expressed*). For instance, ‘remarks that criticize interpretations of religions or beliefs, even vehemently, do not automatically constitute incitement to religious hatred’. The publication of an interview with a leader of a proscribed terrorist organization does not necessarily incite violence or hatred; hence, the fining and imprisonment for publishing such interview constitutes a violation of freedom of expression.[13] An independent and impartial judiciary should be the arbiter in claims of hate speech.[14] The failure of a state to prosecute statements that the ‘people and country are being plundered and destroyed by the Jews, who suck our country empty of wealth and replace it with immoral and un-Norwegian thoughts’ and that the group would ‘follow in the … footsteps [of Hitler] and fight for what (we) believe in’ has been held by the CERD Committee to constitute ‘incitement at least to racial discrimination, if not to violence.[15] A clear example of incitement to violence is the call by ‘Radio Mille Collines in Rwanda … for Hutus to “kill the cockroaches Tutsis”’.[16]
[1] ACHR art 13 requires the criminalization of hate speech. ECHR and ACHPR do not have provisions exclusively dealing with hate speech. [2]Nahimana and Others v Prosecutor, ICTR-99-52-A (ICTR (AC) 2007) para 692. [3] Many states have entered reservations with regard to the provision on participation in organizations. [4]Gelle v Denmark communication 34/2004 (CERD 2006) para 7.3. See also Yilmaz-Dogan v The Netherlands communication 1/1984 (CERD 1988) para 8.2 [5] CoE Committee of Ministers recommendation R(97)20 on ‘hate speech’. On homophobia see EU Fundamental Rights Agency, Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States: Part II – The Social Situation [6]Prosecutor v Akayesu ICTR-96-4-T (ICTR 1998) para 555. [7]Prosecutor v Nahimana and OthersICTR-99-52-T (ICTR 2003) para 1007. [8]CERD article 1. [9]CERD General Comment XIV para 2. [10] See principle 12.1 of the Camden Principles ( http://www.article19.org/resources.php/resource/1214/en/camden-principles-on-freedom-of-expression-and-equality) and the joint submission of three Special Rapporteurs to the 2011 OHCHR expert workshops on the prohibition of incitement to hatred
(http://www2.ohchr.org/english/issues/opinion/articles1920_iccpr/docs/expert_papers_Bangkok/SRSubmissionBangkokWorkshop.pdf). [11]Declaration of the Elimination of Violence against Women (resolution 48/104 of December 1993) in the context of violence against women. [12]‘Freedom of expression and incitement to racial or religious hatred’, joint statement by the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; the Special Rapporteur on freedom of religion or belief; and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (http://www.ohchr.org/Documents/Issues/Religion/SRJointstatement22April09.pdf). [13]Sürek and Özdemir v Turkey, applications 23927/94, 24277/94 (ECtHR 1999) para 61. [14]‘Freedom of expression and incitement to racial or religious hatred’ (2009). [15]The Jewish Community of Oslo & Others v Norway communication 30/2003 (CERD 2005) para 10.4 [16]‘Freedom of expression and incitement to racial or religious hatred’, joint statement (2009). See also the so called media trial before the ICTR, Prosecutor v Nahimana and Others ICTR-99-52-T (ICTR 2003); Nahimana and Others v Prosecutor, ICTR-99-52-A (ICTR (AC) 2007).
Condensed:
Any intentional advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Incitement is intended to directly provoke discrimination, hostility or violence but does not actually have to cause such discrimination, hostility or violence; rather the question considered is what the likely impact might be. In determining whether a particular statement constitutes hate speech, measures must be taken to avoid a chilling effect on freedom of expression of unpopular ideas and information. A violation occurs when there is no law prohibiting advocacy of hatred that constitutes incitement to hostility, discrimination or violence, or when the state does not investigate and sanction hate speech when it occurs.
Comprehensive:
Article 20(2) of the ICCPR provides that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’[1] Such advocacy of hatred is often referred to as hate speech.[2] Article 4 of CERD includes a broader provision requiring that ‘all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination ... the provision of any assistance to racist activities’ and participation in ‘organizations, and … propaganda activities, which promote and incite racial discrimination’ be made a criminal offence.[3]
A violation occurs when there is no law prohibiting advocacy of hatred that constitutes incitement to hostility, discrimination or violence, or when the State does not investigate and sanction hate speech when it occurs.[4]
The protected group or individuals is not limited to national, racial or religious groups as implied in the wording of article 20(2) of the ICCPR. For example, the CoE has defined hate speech as ‘all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance’.[5]
According to the ICTR incitement can be defined as follows:[6]
Incitement is defined in Common law systems as encouraging or persuading another to commit an offence. One line of authority in Common law would also view threats or other forms of pressure as a form of incitement. … Civil law systems punish direct and public incitement assuming the form of provocation, which is defined as an act intended to directly provoke another to commit a crime or a misdemeanour through speeches, shouting or threats, or any other means of audiovisual communication
Incitement does not have to directly cause discrimination, hostility or violence, rather ‘the question considered is what the likely impact might be.’[7] Thus, while direct causal impact is not required, there needs to be a strong nexus between the statements and the risk of the prohibited impacts, for example discrimination. Discrimination is ‘any distinction, exclusion, restriction or preference … which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms’[8] based on the prohibited grounds and which may not be justified on legitimate grounds.[9] Hostility and hatred refer to intense and irrational emotions of opprobrium, enmity and detestation towards the target group,[10]. Violence implies the use of physical or verbal force that ‘results in, or is likely to result in, physical, sexual or psychological harm or suffering’.[11]
In determining whether a particular statement constitutes hate speech measures must be taken to avoid a chilling effect on freedom of expression of unpopular ideas and information.[12] (See *interference with opinions held or expressed*). For instance, ‘remarks that criticize interpretations of religions or beliefs, even vehemently, do not automatically constitute incitement to religious hatred’. The publication of an interview with a leader of a proscribed terrorist organization does not necessarily incite violence or hatred; hence, the fining and imprisonment for publishing such interview constitutes a violation of freedom of expression.[13] An independent and impartial judiciary should be the arbiter in claims of hate speech.[14]
The failure of a state to prosecute statements that the ‘people and country are being plundered and destroyed by the Jews, who suck our country empty of wealth and replace it with immoral and un-Norwegian thoughts’ and that the group would ‘follow in the … footsteps [of Hitler] and fight for what (we) believe in’ has been held by the CERD Committee to constitute ‘incitement at least to racial discrimination, if not to violence.[15] A clear example of incitement to violence is the call by ‘Radio Mille Collines in Rwanda … for Hutus to “kill the cockroaches Tutsis”’.[16]
[1] ACHR art 13 requires the criminalization of hate speech. ECHR and ACHPR do not have provisions exclusively dealing with hate speech.
[2] Nahimana and Others v Prosecutor, ICTR-99-52-A (ICTR (AC) 2007) para 692.
[3] Many states have entered reservations with regard to the provision on participation in organizations.
[4]Gelle v Denmark communication 34/2004 (CERD 2006) para 7.3. See also Yilmaz-Dogan v The Netherlands communication 1/1984 (CERD 1988) para 8.2
[5] CoE Committee of Ministers recommendation R(97)20 on ‘hate speech’. On homophobia see EU Fundamental Rights Agency, Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States: Part II – The Social Situation
[6]Prosecutor v Akayesu ICTR-96-4-T (ICTR 1998) para 555.
[7] Prosecutor v Nahimana and Others ICTR-99-52-T (ICTR 2003) para 1007.
[8]CERD article 1.
[9]CERD General Comment XIV para 2.
[10] See principle 12.1 of the Camden Principles (
http://www.article19.org/resources.php/resource/1214/en/camden-principles-on-freedom-of-expression-and-equality)
and the joint submission of three Special Rapporteurs to the 2011 OHCHR expert workshops on the prohibition of incitement to hatred
(http://www2.ohchr.org/english/issues/opinion/articles1920_iccpr/docs/expert_papers_Bangkok/SRSubmissionBangkokWorkshop.pdf).
[11]Declaration of the Elimination of Violence against Women (resolution 48/104 of December 1993) in the context of violence against women.
[12]‘Freedom of expression and incitement to racial or religious hatred’, joint statement by the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; the Special Rapporteur on freedom of religion or belief; and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (http://www.ohchr.org/Documents/Issues/Religion/SRJointstatement22April09.pdf).
[13] Sürek and Özdemir v Turkey, applications 23927/94, 24277/94 (ECtHR 1999) para 61.
[14]‘Freedom of expression and incitement to racial or religious hatred’ (2009).
[15]The Jewish Community of Oslo & Others v Norway communication 30/2003 (CERD 2005) para 10.4
[16]‘Freedom of expression and incitement to racial or religious hatred’, joint statement (2009). See also the so called media trial before the ICTR, Prosecutor v Nahimana and Others ICTR-99-52-T (ICTR 2003); Nahimana and Others v Prosecutor, ICTR-99-52-A (ICTR (AC) 2007).