Hate speech

Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

692. The Appeals Chamber considers that there is a difference between hate speech in general (or inciting discrimination or violence) and direct and public incitement to commit genocide. Direct incitement to commit genocide assumes that the speech is a direct appeal to commit an act referred to in Article 2(2) of the Statute; it has to be more than a mere vague or indirect suggestion.[1] In most cases, direct and public incitement to commit genocide can be preceded or accompanied by hate speech, but only direct and public incitement to commit genocide is prohibited under Article 2(3)(c) of the Statute. This conclusion is corroborated by the travaux préparatoires to the Genocide Convention.[2]

693. The Appeals Chamber therefore concludes that when a defendant is indicted pursuant to Article 2(3)(c) of Statute, he cannot be held accountable for hate speech that does not directly call for the commission of genocide. The Appeals Chamber is also of the opinion that, to the extent that not all hate speeches constitute direct incitement to commit genocide, the jurisprudence on incitement to hatred, discrimination and violence is not directly applicable in determining what constitutes direct incitement to commit genocide. […]

727. In the present case, it is not certain that the Trial Chamber convicted Appellant Nahimana on the basis of “programming”. The Trial Chamber does not appear to have considered that the entirety of RTLM broadcasting constituted direct and public incitement to commit genocide, but rather that certain broadcasts did.[3] However, the Appeals Chamber agrees with the Appellant that the Trial Chamber should have identified more clearly all of the broadcasts which, in its opinion, constituted direct and public incitement to commit genocide.  Thus the Trial Chamber erred in this respect.

[1] Kajelijeli Trial Judgement, para. 852; Akayesu Trial Judgement, para. 557; Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, para. 87. See also Comments of the International Law Commission on the Draft Code of Crimes Against the Peace and Security of Mankind, p. 22: “The element of direct incitement requires specifically urging another individual to take immediate criminal action rather than merely making a vague or indirect suggestion.”

[2] Articles 2(2) and (3) of the Statute reproduce Articles 2 and 3 of the Genocide Convention. The travaux préparatoires of the Genocide Convention can therefore shed light on the interpretation of Articles 2(2) and (3) of the Statute. In particular, the travaux préparatoires demonstrate that Article 3(c) (Article 2(3)(c) of the Statute of the Tribunal) is intended to criminalize only direct appeals to commit acts of genocide and not all forms of incitement to hatred. Indeed, the first draft of the Convention, which was prepared by a group of experts on behalf of the United Nations Secretary General (UN Doc. E/447), contained provisions criminalizing not only direct and public incitement to commit genocide (Article II (II)(2.)), but also all forms of public propaganda tending by their systematic and hateful character to promote genocide, or tending to make it appear as necessary, legitimate or excusable (Article III). The second draft of the Convention (prepared by the Ad Hoc Committee of the Economic and Social Council, UN Doc. E/794), contained only one provision criminalizing direct and public incitement to commit genocide, regardless of whether it was made in public or in private, and of whether it was successful or not (Article IV(c)). The Soviet delegate had suggested the inclusion of a provision criminalizing hate propaganda and propaganda tending to incite acts of genocide, but the suggestion was rejected by the majority of the Ad Hoc Committee (UN Doc. E/794, p. 23). Later, the Soviet delegate again suggested to the 6th Committee of the General Assembly an amendment of Article III (UN Doc. A/C.6/215/Rev. 1) criminalizing “all forms of public propaganda (press, radio, cinema, etc.) that tend to incite racial, national or religious hatred” and “all forms of propaganda that are aimed at provoking the commission of acts of genocide”. The amendment was rejected (UN ORGA, 6th Committee, 3rd Session, 87th meeting, p. 253). The reasons for rejecting the two parts of the amendment seem to have been the same as those for rejecting the Soviet amendment presented to the Ad Hoc Committee: the first part of the amendment fell outside the framework of the Genocide Convention (see addresses of the delegates of Greece, France, Cuba, Iran, Uruguay and India) while the second part was a duplication of the provision prohibiting incitement of direct and public incitement to commit genocide (see addresses of the delegates of Greece, Cuba, Iran, Uruguay, Egypt, the United States of America). See UN ORGA, 6 th Committee, 3rd Session, 86th meeting, UN Doc. A/C.6/3/CR. 86, 28 October 1948, pp. 244-248, and UN ORGA, 6th Committee, 3rd Session, 87th meeting, UN Doc. A/C.6/3/CR. 87, 29 October 1948, pp. 248-254.

[3] See Judgement, para. 1032 (referring to the broadcast of 4 June 1994 as “illustrative of the incitement engaged in by RTLM”). See also para. 483 (referring to the broadcast of 13 May 1994 and the one of 5 June 1994 as explicitly calling for extermination).

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ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

986. The Appeals Chamber considers that hate speech targeting a population on the basis of ethnicity, or any other discriminatory ground, violates the right to respect for the dignity[1] of the members of the targeted group as human beings,[2] and therefore constitutes “actual discrimination”. In addition, the Appeals Chamber is of the view that speech inciting to violence against a population on the basis of ethnicity, or any other discriminatory ground, violates the right to security[3] of the members of the targeted group and therefore constitutes “actual discrimination”. However, the Appeals Chamber is not satisfied that hate speech alone can amount to a violation of the rights to life, freedom and physical integrity of the human being. Thus other persons need to intervene before such violations can occur; a speech cannot, in itself, directly kill members of a group, imprison or physically injure them.

987. The second question is whether the violation of fundamental rights (right to respect for human dignity, right to security) is as serious as in the case of the other crimes against humanity enumerated in Article 3 of the Statute. The Appeals Chamber is of the view that it is not necessary to decide here whether, in themselves, mere hate speeches not inciting violence against the members of a group are of a level of gravity equivalent to that for other crimes against humanity. As explained above, it is not necessary that every individual act underlying the crime of persecution should be of a gravity corresponding to other crimes against humanity: underlying acts of persecution can be considered together. It is the cumulative effect of all the underlying acts of the crime of persecution which must reach a level of gravity equivalent to that for other crimes against humanity. Furthermore, the context in which these underlying acts take place is particularly important for the purpose of  assessing their gravity.

[1] On the content of this right, see for example the Universal Declaration on Human Rights, the Preamble of which expressly refers to the recognition of dignity inherent to all human beings, while the Articles set out its various aspects.

[2] In this regard, it should be noted that, according to the Kvočka et al. Appeal Judgement (paras. 323-325), violations of human dignity (such as harassment, humiliation and psychological abuses) can, if sufficiently serious, constitute acts of persecution.

[3] On the right to security, see for example Article 3 of the Universal Declaration on Human Rights (“Everyone has the right to life, liberty and security of person”).

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)