Defining Hate Speech: A Seemingly Elusive Task

This article looks at the international criminal law on hate speech that falls short of direct and public incitement to commit genocide. Using the most egregious form of hate speech that has been prosecuted as an international crime — that of direct and public incitement to genocide — as a baseline, the author analyses the legal parameters of hate speech as persecution (a crime against humanity) and hate speech as instigation (a mode of liability). In so doing, the author critically reviews the International Residual Mechanism for the International Criminal Tribunals’ (IRMCT) appeal judgment in the Šešelj case (Šešelj Appeal Judgment) in the light of prior case law of the International Military Tribunal of Nuremberg (IMT) and the International Criminal Tribunals for Rwanda and the former Yugoslavia (ICTR and ICTY respectively). The author submits that a plain reading of the Šešelj Appeal Judgment supports the view that it is only the more extreme form of incitement to violence, incitement to commit crimes, followed by actual violent acts, that may constitute hate speech amounting to the crime of persecution: incitement to discrimination or incitement to hatred as such do not qualify. Whether ‘incitement to violence’ absent the commission of crimes could qualify as persecution (a crime against humanity) remains an unsettled point. With regard to hate speech as instigation, the Šešelj Appeal Judgment’s restatement and application of the law causes less controversy: the substantial causal connection required for instigation was found to be direct in the circumstances of that case — even though directness is not a legal requirement for instigation. The author concludes that both these interpretations of hate speech are consistent with the earlier ad hoc tribunals’ jurisprudence and, more generally, with international human rights law which, with some controversial exceptions, allows criminalization only of the most extreme forms of incitement to violenc