Introduction

This research investigates some of the substantive challenges in prosecuting hate speech in international criminal law. These challenges, as investigated and argued, are attributable to some factors such as the absence of a standalone crime as hate speech in international criminal law instruments; the conflating and confusing use of the words “instigation” and “incitement” with the former as a mode of participation and the latter as an inchoate crime; the unsettled debates within the realm of international human rights law where specific kinds of speeches are excluded from legal protection; the broad and intricate notion of participation in a crime; and the issue of causation. Building on, and burrowing from the legacy of the International Military Tribunal (IMT), Nuremberg, and more specifically the trials of Hans Fritzsche and Julius Streicher for the kinds of propaganda (speeches) and publications (magazine) they disseminated, and in view of the background and discussions leading to the inclusion, prohibition and criminalisation of the crime of direct and public incitement to commit genocide in the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), and as evidenced by subsequent and critical developments in international criminal law, it is argued that the prosecution of hate speech is settled: hate speech may take the form of criminal participation (instigation) or an inchoate crime (direct and public incitement to commit genocide). On the issue of criminal participation, criminal liability may vary between direct perpetrator and an indirect perpetrator: however, irrespective of whether direct or indirect participation, the notion of participation evokes yet another complex issue in criminal prosecution, including hate speech: the issue of causation.