How Hate Speech Constitutes the Crime of Genocide:The Regulation of Incitement to Genocide under International Criminal Law
Hate speech is a long-standing phenomenon in human history.United Nations Secretary-General António Guterres has specifically pointed out that hate speech is highly destructive and has often been a precursor to atrocities,including genocide,in places such as Rwanda,Bosnia,and Cambodia.In the large-scale ethnic violence in Myanmar,hate speech also played a pivotal role in escalating the violence.The Independent International Fact-Finding Mission on Myanmar established by the UNHRC,the International Criminal Court(ICC)prosecutor,and Gambia,which has filed a case against Myanmar at the International Court of Justice,have all highlighted the dangers of hate speech.Many international human rights instruments recognize freedom of expression;however,this freedom is not absolute and must be limited in certain cases.Specifically,certain forms of hate speech are subject to regulation under international criminal law.At the early stages of the development of international criminal law,the Nuremberg Military Tribunal convicted defendants who engaged in persecution through hate speech.As international criminal law matured,the statutes of ad hoc international criminal tribunals,hybrid tribunals,and the International Criminal Court(ICC)all included provisions addressing hate speech.Studying the regulation of hate speech under international criminal law not only helps understand the current state of international rules and practices but also aids in examining the legal frame-works that prohibit and punish hate speech in other countries.The history of regulating hate speech under international criminal law can be divided into three stages:the first stage,during which early international criminal law sought to criminalize hate speech;the second stage,in which ad hoc international criminal tribunals began to develop frameworks for regulating hate speech related to genocide;and the third stage,marked by new developments under the ICC framework.Currently,international criminal law has established a unique and relatively detailed regulatory mechanism for hate speech,primarily by classifying hate speech as direct and public incitement to genocide,thus targeting the most serious hate speech crimes.International criminal law requires that the perpetrator possess a specific intent to commit genocide,and that the hate speech meet the elements of both"directness"and"publicness".Even if the perpetrator does not directly cause the serious consequences of genocide,they may still face punish-ment.It is difficult to form an internationally recognized treaty on regulating hate speech that all countries would adhere to,but the harmful impact of hate speech is undeniable.To protect individual dignity and self-worth,and to prevent the crimes aris-ing from hate speech,countries must further improve domestic mechanisms for regu-lating hate speech in order to achieve broader consensus.
hate speechfreedom of expressioninternational criminal lawInternational Criminal Courtinternational criminal responsibility
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