Hate Speech Beyond “Instigation” as a Mode of Participation: Rethinking Some Nuanced Instances of Accessorial Liability

Prior to, and during mass atrocities, the authors of hate speech do not limit themselves to the utterances of words and phrases that incite followers to engage in criminal behaviour against identified individuals or groups of people. In many cases, they would provide names and other pertinent information of individuals that should be victimised. They supply weapons, instruct their followers on the specific acts to do and how those acts help in achieving their ultimate goals. In some other instances, they would accompany militia groups and assist in surrounding their victims so that they cannot escape, or use their cars to transport them to the areas where they have to commit those crimes. When authors of hate speech orchestrate these different kinds of conduct, imputing criminal responsibility on them for instigation (through hate speech) as a mode of participation, in my view, does not capture and reflect the complete picture of the different roles played in bringing about the planning, preparation and execution of the crimes for which they are charged. The different roles played indicate that such authors should incur criminal responsibility for accessorial complicity in view of the fact that they did not only utter hate speech, but indirectly participated in the planning, preparation and execution of the crimes that were committed. Criminal responsibility for hate speech that constitutes instigation should end if it is proved that the author of that hate speech did not go beyond the utterance of words and phrases that amounted to hate speech. However, moving beyond uttering hate speech to indirect participation such as the compilation and distribution of names of individuals to be victimised, transportation of perpetrators to the community where crimes were committed, supply of weapons and barricading communities to prevent escape, it is argued, should implicate the authors further because these actions, in some way, contributed to the crimes. That touches on indirect participation, otherwise known as accessorial complicity—an aspect that is often overlooked in criminal participation in mass atrocities.