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Statements Office of the High Commissioner for Human Rights
15 February 2013
Freedom of Expression and incitement to hatred in the context of International Human Rights Law
15 February 2013
Ladies and Gentlemen,
I'd like to thank you for giving me the opportunity to speak about this very important, but at the same time extremely controversial, topic.
Hate speech, claims of hate speech, and violent reaction to perceived hate speech have in the past decade created enormous friction across the globe. This storm of controversy may reflect the kind of world that lies ahead in this 21st century, when we will increasingly live side by side with people whom we perceive as different from ourselves. More than half the world's population now lives in cities; and this proximity, together with migration and the Internet, means that the risk of stepping on someone’s toes — of saying or doing something that exceeds someone’s bounds — is at a new peak today.
There is an established framework of international law on this topic. But clearly Member States have indicated a great need of better guidance on how it should be implemented. And this is a very delicate matter to address.
Free speech is vital to human dignity. It is the cornerstone of every democratic society, because it is an enabling right — a right that allows individuals to argue for their enjoyment of all other rights, from fair trials and free elections to decent living conditions. So as a matter of fundamental principle, the limitation of any kind of speech or expression must remain an exception.
On the other hand, speech can be an incitement to action — in some cases, very violent and hateful action. I recall a case that I heard in 1998, when serving as a judge on the International Criminal Tribunal for Rwanda. This was really a worst-case scenario: people working at a radio station and a newspaper had quite outright called for massacres, using very unambiguous words. Because of cases like these, where speech can be clearly linked to wrongful action, international law requires states to ban certain speech that undermines the rights or reputation of others, and it also, on certain conditions, permits speech to be prohibited on the basis that this is necessary to protect public order, public health or morals.
There are very forthright views on this question of how to balance freedom of expression with the need to prohibit hate speech. Some argue that speech and expression should never be limited at all. They point out — and this unfortunately is true — that laws limiting speech are very often misused by authorities to muzzle critics and silence minorities. A number of other people, on the contrary, argue for far more control of speech. They seek more norms, to protect much more extensive areas of human activity from criticism or ridicule or scrutiny.
What I intend to do today is first review the key international human rights law standards regarding hate speech, and look at how these have been interpreted by the international bodies that oversee their implementation. I'll then outline two significant challenges that face us in respect of those international norms. Thirdly, I would like to discuss recent moves to provide more expert guidance regarding the application of these existing international laws. This guidance results from a rather remarkable process that my Office facilitated in 2011 and 2012; this has culminated in a Plan of Action on the prohibition of advocacy of national, racial or religious hatred which constitutes incitement to discrimination, hostility or violence. The document, which was adopted by a number of internationally recognised experts in the matter, will be launched in Geneva in one week's time.
The intention of my Office in facilitating this guidance has been to foster more effective implementation of the international prohibition on incitement to hatred, while deterring laws and practices that would undermine freedom of expression. As I'm sure you appreciate, the law alone cannot resolve very complex social and cultural questions of this kind, and the balancing must be done by judges and the courts, via a responsive body of jurisprudence. However, I very much hope that the guidance that has been produced will be of assistance in shaping a calm and concerted approach to this very inflammatory topic.
The International Covenant on Civil and Political Rights, in its Article 19, guarantees the right to freedom of opinion and expression. But unlike, say, the law regarding genocide, torture, slavery and crimes against humanity, the right to freedom of expression is not absolute. Thus Article 19 of the International Covenant on Civil and Political Rights allows certain restrictions when they are necessary for respect of the rights or reputations of others, or for the protection of national security, public order or of public health or morals.
In addition, article 20 of the Covenant actually requires the prohibition of propaganda for war, and “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.
These two Articles of the Covenant, 19 and 20, are distinct and even in tension – a fact that is evident in the drafting history. They were kept separate to highlight that Article 19 guarantees the right to freedom of expression, while Article 20 actually imposes an obligation upon States to prohibit certain kinds of speech. However, it was also decided to place these Articles next to each other to emphasize their close relationship.
The Human Rights Committee – the UN treaty body which oversees the implementation of this Covenant – seeks to balance these two articles, so that individuals may be protected against incitement to hatred while the authorities maintain the least possible interference with freedom of expression. The Committee has stated in its General Comment 34 that any measure seeking to implement article 20.2 must satisfy the test for restrictions on freedom of expression under article 19.3. This was confirmed in the case of Ross vs. Canada. An author and teacher who promoted anti-Jewish views in publications and in the classroom was dismissed from his post. He claimed violation of articles 18 and 19 of the ICCPR. The Committee found no violation of the Covenant and also recognised both the relevance of restrictions to freedom of expression and the permission to act under Article 20 of the ICCPR.
A second instrument, the International Convention on the Elimination of Racial Discrimination or ICERD, which was adopted by the General Assembly in 1965, was actually the first international treaty to directly deal with the question of hate speech. Article 4 of the ICERD requires states to work to eradicate all incitement to racial discrimination. Dissemination of ideas based on racial superiority or hatred; acts of violence or incitement to such acts against any race or ethnic group; and the provision of assistance to racist activities must be declared punishable by law.
At the time, some States voiced strong opposition to the prohibition of mere ‘dissemination of ideas’ based on racial superiority or hatred – presumably concerned about its impact on freedom of expression. Views also differed on whether criminal law prohibitions on incitement were appropriate or whether a focus on education was preferable. Some of these concerns later resurfaced in the form of reservations to that Convention. And these dormant tensions of some fifty years ago clearly still have resonance today.
In reviewing reports prepared by States, the CERD Committee has emphasized the importance of prohibiting incitement to hatred. For example, the Committee consistently reminds states of their obligation to ban organizations, including mass media, which promote and incite racial discrimination. In one instance, the Committee recommended that the State consider extending the crime of incitement to cover offences motivated by religious hatred against immigrant communities. The Committee has also recommended the introduction of provisions designating racist motivations for crimes – and, more recently, motivations of religious hatred – as aggravating circumstances. In general, CERD emphasizes that hate speech can contribute to racial violence, and even to genocide.
CERD’s General Recommendation 15, written in 1993 recalls that the drafters regarded Article 4 as central to the struggle against racial discrimination in view of ‘a widespread fear of the revival of authoritarian ideologies’. The Recommendation strongly affirms that freedom of expression is compatible with prohibiting ideas based on racial superiority or hatred. Responding to some States’ claims that it is inappropriate to declare an organization illegal before its members have promoted or incited racial discrimination, CERD finds that the paragraph places a “burden upon such States to be vigilant in proceeding against such organizations at the earliest moment.”
In the case of The Jewish Community of Oslo v. Norway, the Committee considered a case of a group known as the ‘Bootboys’ which organized and participated in a march in commemoration of the Nazi leader Rudolf Hess. The leader of the march, Mr Sjolie, made a speech in honour of Rudolph Hess. The Supreme Court of Norway found that penalising approval of Nazism and prohibiting Nazi organisations would be incompatible with freedom of speech. However, CERD argued that Mr Sjolie’s speech contained ideas based on racial superiority or hatred, and that the deference to Hitler and his principles must be taken as incitement to racial discrimination, if not violence. It concluded that Mr Sjolie's acquittal by the Norwegian Supreme Court violated the Convention.
Clearly there is a complex relationship between freedom of expression and prohibition of hate speech, which requires assessment on a case-by-case basis. And this is rendered even more delicate by the distinct approaches to incitement to hatred in the two major treaties. The Convention on the Elimination of Racial Discrimination offers more far-reaching protection against incitement to hatred, albeit within the more limited “racial” scope of the treaty, and lists prohibitions in considerably more detail than the Covenant. Consequently, practice under ICERD has tended to apply the prohibition on incitement more broadly, in comparison to the Human Rights Committee’s practice.
I'd like now to address two very significant challenges to implementing these two core legal instruments. The first challenge is one of definition.Intolerance and even intense dislike of others may in some contexts be quite legitimate emotions — for example when we criticize people who have oppressed vulnerable persons. So when is the expression of hatred permissible, and when is it prohibited? What form may that expression take? What is the threshold?
Last August the Committee on the Elimination of Racial Discrimination held a thematic discussion on racist hate speech where this question was discussed. It was suggested that severity should be a key factor. Severity could be determined by examining who made the statement, what was in the statement, and the timing of the statement. How likely was harm, and how imminent? Was the speaker in a position of authority, with leadership of millions, or a lone individual?
The suggestion that intent also be viewed as an important factor was more controversial as under the CERD Convention the mere dissemination of certain material is prohibited. There is no requirement to demonstrate intent in relation to discrimination, so this has the potential to challenge a number of assumptions under human rights law. In the ICCPR, however, the element of “advocacy” in article 20 could be understood as requiring intent. The case of Faurisson vs. France concerned the case of a university professor who was dismissed and later fined under the French Gayssot law after alleging that the gas chambers at Nazi concentration camps had not been used for the extermination of the Jews. The Human Rights Committee ruled in favour of France, and although it did not examine the relevance of Article 20, several individual opinions expressed concern that the Gayssot law did not require intent on the part of the author in order to hold him liable.
A third factor relevant to determining the prohibition of certain speech is the context in which the speech is made. Complaining in a national newspaper that immigrants occupy jobs formerly given to natives might be a fair observation.
However, making the same statement outside an immigrant’s home might constitute incitement to hatred. One context-related indicator to indicate whether speech should be seen as incitement to hatred could be a history of violence and persecution.
Causation is an interesting point. Inciting an act is not the same thing as causing one. And it's possible to argue that incitement should be punishable even if no-one has followed it up with action. Still, when assessing whether speech incites hatred, Courts will often look for causation factors. In the case of Ross vs. Canada for instance, the Supreme Court of Canada noted that a “poisoned environment” had been created within the relevant school board, possibly because of Ross' publications. Similarly, in the Faurisson vs. France case, it was noted that Faurisson's statements “were of a nature as to raise or strengthen anti-Semitic feelings”.
Another key suggestion is to draw a clear line between expression targeting ideas — which is to be protected — and on the other hand, abusive expression that targets human beings, which may not be protected. The UN Human Rights Committee has clarified that the “mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties”. Consequently, the Committee has expressed concern regarding laws on issues such as lèse majesty, desacato, disrespect for authority, disrespect for flags and symbols, defamation of the head of state and the protection of the honour of public officials.
So as you see, sometimes it may be quite difficult to distinguish between hate speech and speech that is merely offensive, for there is no firmly agreed definition of hate speech in international law. And perhaps neither should there be one. Instead, we have a number of slightly different regional and national approaches. Some countries protect hate speech unless the speech actually incites imminent violence; while on the other end of the spectrum there are stringent restrictions on speech in some countries in the context of Holocaust denial, or in other countries for the protection of religious doctrine or symbols.
Finding a strong, clear and common definition of hate speech, if at all desirable, is further complicated by the fact that ICERD and the ICCPR address the issue differently.
Whatever the applicable regime may be, I purport that it is essential to make a careful distinction between forms of expression that should constitute an offence under criminal law; forms of expression that are not criminally punishable but may justify a civil suit; and forms of expression that do not give rise to sanctions but may raise concerns in terms of tolerance, civility and respect, such as racism in sports.
This brings us to our next challenge, which centres on claims of blasphemy and the concept of defamation of religion.
It will have escaped none of you that within the international human rights system, in the past 25 years there have been repeated and vigorous challenges to various forms of speech on the grounds that they offend certain believers and belief systems.
Central to this movement has been use of the term ‘defamation of religion’. For more than a decade, the UN Commission on Human Rights and its successor body, the UN Human Rights Council, were deadlocked in a debate on this concept. This stalemate has now come to an end, and I propose now to discuss exactly how a way out of the conflict was sought, towards firmer, and commonly agreed, ground.
The position of my Office has been clear throughout. Human rights law protects individuals and groups, not belief systems. You cannot defame a religion. In fact, it should be possible to scrutinise, openly debate, and even harshly criticise belief systems, opinions, and institutions, including religious ones. This is absolutely intrinsic to the right to freedom of expression. Moreover, the Human Rights Committee has held that blasphemy laws are incompatible with the Covenant, since they have a stifling impact on the enjoyment of freedom of belief, as well as healthy dialogue and debate about religion.
So the position of my Office has been that there is no need for additional legislation protecting belief systems from defamation, because individuals are sufficiently protected under existing norms, and the concerns of those who feel offended in their religious or other values can adequately be addressed under the existing framework. What we need is proper guidance for implementing these standards, combined with a sufficient degree of political commitment on all sides of the debate.
In March 2011, the Human Rights Council broke its deadlock regarding this matter with Resolution 16/18. This resolution, which was unanimous, addresses negative stereotyping, discrimination, incitement to violence, and violence against people based on religion or belief. It reinforced the relevant provisions from international human rights treaties and set out concrete actions to fight these scourges. In doing so, the Human Rights Council managed to move the issue away from the huge storm of public emotion into an inter-governmental body. And whatever you may think of inter-governmental bodies, that to me was a milestone moment.
Already before the adoption of this landmark resolution, I had initiated a process with a view to bring clarity to the debate. My Office took the initiative of organising a series of high-level expert workshops, in the different regions of the world, in order to examine legislations, jurisprudence, and national policies on the related issues.
A total of five expert workshops were held in 2011 and 2012, in Vienna, Nairobi, Bangkok, Santiago and Rabat. These workshops involved three UN Special Rapporteurs — on Freedom of Opinion and Expression, Freedom of Religion or Belief, and Racism, Racial Discrimination, Xenophobia and Related Intolerance — as well as 45 experts from different cultural backgrounds and legal traditions. They recognised the importance of freedom of expression, but also signalled concern about rising intolerance, discrimination and violence on racial and religious grounds in many parts of the world. The proceedings also shed light on areas of insufficient national legislation, as well as new, vague and unclear provisions that have been introduced, which are open to misuse.
I learned that many Governments, in response to current challenges, have introduced new, punitive measures on speech that go beyond the prohibition of incitement to hatred as proscribed in the ICCPR. In particular, participants provided examples of the negative impact of anti-blasphemy laws; problems relating to curbing freedom of information and the use of the Internet; examples of harassment of journalists and human rights defenders; and instances where members of minorities are persecuted through the abuse of vague or counter-productive legislation.
The workshops culminated in an expert meeting in Rabat in October 2012 that adopted a detailed, powerful, and comprehensive Plan of Action. The conclusions and recommendations of Rabat explore the full potential of our existing international law, when that law is correctly understood and implemented. In essence, they offer a set of tools to all stakeholders — states, parliaments and judiciary, civil society and indeed also regional and inter-national organisations — to help better implement the existing international human rights norms.
The Plan of Action also recommended that security forces, police and those involved in the administration of justice be better trained regarding the prohibition of incitement to hatred. It highlighted the need to set up a public policy and regulatory framework that promotes pluralism and diversity of the media, including new media. And it suggested that political parties adopt and enforce ethical guidelines regarding the conduct of their representatives, particularly their public speech.
Rabat also defines six thresholds that must be met for speech to be criminally prohibited. They include context; the speaker's standing; intent to advocate or incite; content; scope or extent; and imminence.
Rabat also points out that criminal sanctions related to unlawful forms of expression should be seen as "last resort" measures, to be applied only in strictly justifiable situations. Civil sanctions and remedies should also be considered, including financial and non-financial damages, along with the right of correction and the right of reply.
Thus we have arrived at the position that we do not in fact need more norms — or fewer norms, for that matter. We have the necessary framework to measure permissible restrictions on freedom of expression, and to consider the prohibition of incitement to hatred. What we need is better understanding of those tools as well as a stronger commitment to implementing existing norms and standards.
I cannot claim that Rabat has for ever resolved the delicate equation between free speech and protection from incitement to hatred. And I cannot claim either that we have achieved universal consensus regarding the protection, or non-protection, of religions. However, I do think that the Rabat Plan of Action marks a very significant process that has educated all of us in ways to better balance respect for the deeply important right of free expression with the prohibition of incitement to hatred.
But Rabat will not, alone, achieve this task of constructing a solid framework for a society of diversity and tolerance. For no law could. Legislation is just one part of the larger toolbox we need to respond to the challenges of hate speech in a society where old boundaries are crumbling.
We need to create greater empathy and intercultural dialogue. And clearly greater involvement of media would be of immense use in this respect. Broadcast and print media must adopt codes of conduct to prohibit the use of racist terms and to stop reporters from relying on stereotypes, including gender stereotypes. They can commit to ensuring a diverse workforce, reporting factually and progressively on sensitive topics, and ensuring that a proper complaints mechanism is set up. And digital media should also seek to address these issues.
Can people of different backgrounds, history and religion live together, and remain true to themselves without pushing others away? In a world where we all encounter more people from other cultures, or who hold very different opinions, it may be a very real challenge to learn to respect fully each others' beliefs and choices. It is my hope that the Rabat Plan of Action will help boost the full implementation of widely accepted international human rights obligations, and so help to break the world's many vicious cycles of hatred and vengeance.
Ross v. Canada 18 October 2000, Communication No. 736/1997 (UN Human Rights Committee)