Prosecuting “Hate Speech”: Peeping into Some Notional and Philosophical Complexities

This chapter looks at the sui generis character of hate speech in international (criminal) law. As argued in this chapter, numerous layers of complexities are encountered in the prosecution of hate speech: first, and within the realm of international and regional human rights law, the debate rages as to whether “hate speech” falls beyond the spectrum of legally protected speech in international law thereby necessitating a delineation of what really is the substantive content of Article 20 of the ICCPR. In addition, considering the obligations imposed on States Parties to the ICCPR, and bearing in mind the nature and extent of reservations and declarations entered into by States Parties to Article 20 of the ICCPR, could it be said that the prohibition of hate speech has attained the status of customary international law? The second dimension of this complexity relates to the politico-legal practices within States (national legal instruments such as constitutions and the recognition of the right to freedom of expression, history and culture, and the use of criminal law to prohibit and criminalise specific kinds of speeches such as Holocaust trivialisation or denials). In view of the divergent approaches by States, what can be extrapolated therefrom? Arguably, such practices suggest the existence of a typology of “hate speech” which is quite important for the imposition of criminal responsibility at domestic level. Lastly, the non-utilisation of the phrase “hate speech” in international instruments may itself pose not only an issue of genesis and utilisation but that of definition as well: what really is “hate speech”? The fluidity of this concept and the reticence exuded by international instruments on this issue may be indicative of an unresolved legal maze. From the foregoing, and without delving into states’ approaches in defining hate speech, this chapter investigates the typology of “hate speech”, and argues that in view of states’ practices, arguably, the prohibition of “hate speech” has not attained the status of customary international law. Prior to making that argument, this chapter examines some philosophical complexities that relate to the prosecution of “hate speech” in international criminal law and justice.