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UN Committee on the Elimination of Racial Discrimination 81st session

22 October 2012

6-31 August 2012

28 August 2012

The concept of racist hate speech and its evolution over time

Abstract of presentation by Mark Lattimer, Executive Director, Minority Rights Group International

The practice of publicly denigrating other ethnic or religious groups and inciting hatred or violence against them is as old as human society, but the concept of ‘hate speech’ as presently understood in international human rights law is relatively new.

Since antiquity, governments have handed down punishment to those who insult authority or question dominant beliefs, but this should be distinguished from the attempt by the post-WW2 generation of human rights treaties to establish systematic protection of vulnerable groups from hate speech (although the brief subsequent history of hate speech provisions shows a tendency for the latter to revert back to the former).

The three sub-paragraphs of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination provide for three types of protection against racist hate speech. Sub-paragraph 4(a) provides for criminal penalties for the practitioners of hate speech. In extreme cases this might include incitement to extermination, persecution or other crimes against humanity, or incitement to genocide (the leading cases run from Streicher before the International Military Tribunal at Nuremberg, to Akayesu, Kambanda, and the ‘Media case’ before the International Criminal Tribunal for Rwanda). At national level, prosecutions are nearly always of private actors, including sometimes members of minorities or political dissidents. Sub-paragraph 4(b) provides for the suppression of organizations which practice hate speech and calls for further criminal penalties against those who participate in such organizations.

One notable trend in prosecution for hate speech that does not constitute incitement to violence (at least not directly) is the development in European states of legislation criminalizing denial of the Holocaust or of other crimes under international law (cf. EU Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law). In some states, however, the very commemoration of atrocities may invite legal penalties or other hate-speech style provisions.

Perhaps unsurprisingly, given the way Article 4 is drafted, the methods of combating hate speech have relied heavily on criminal sanctions. However, criminal penalties for hate speech, while necessary, are often relatively ineffective and present a number of further problems:

  • they can be used to penalise minorities or political dissidents;
  • the potential conflict with rights to freedom of expression, while surmountable in legal terms, can enable hate speech practitioners to claim they are being silenced or oppressed;
  • criminalising incitement to certain conduct (eg. racial discrimination) is awkward if that conduct is not itself considered an offence;
  • international criminal law has in some respects moved away from the prosecution of inchoate offences;
  • globalized communications media, including the internet and mobile telephony, can make criminal prosecutions impractical and can complicate the assessment of criminal intent;
  • criminal prosecutions are unlikely in practice against officials or those in authority.

Hate speech is at its most dangerous, however, when practiced by members of governments or other public officials. For this reason, the rather neglected sub-paragraph 4(c) is the most important of Article 4. At the time ICERD was concluded, it would have been difficult to read the opening lines of Article 4 without immediately thinking of the practice of apartheid in South Africa. Yet the apartheid state would not have imposed criminal sanctions against its own practices. International action to use the criminal law to suppress the most extreme forms of racist hate speech has also come up against the obstacle of sovereign immunity (cf. DRC v. Belgium (Yerodia case) before the International Court of Justice).

The challenge remains to promote the further implementation of sub-Article 4(c) in order to curtail official support for racist hate speech, including measures to enable human rights claims under 4(c) to be actionable before national or international courts or international monitoring bodies.