International legal framework

• Author: Petra Bárd - Judit Bayer
• Pages: 31-65

IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs

26 PE 655.135

INTERNATIONAL LEGAL FRAMEWORK

There is a shared responsibility in a system of multi-level governance to tackle the issue of hate speech

and hate crimes – an area on the border between human rights law and criminal justice. International

law provides guidance on how to prevent and tackle the phenomena, but it is ultimately up to the

states to implement measures that efficiently fight hate speech and hate crimes. In the national setting,

a cooperation of the police, prosecutors’ offices, judiciary, victims’ services and civil society

organizations is needed to achieve this aim.

2.1. UN documents addressing hate speech and hate crimes

Member states of the United Nations recognised by the adoption of the Universal Declaration of

Human Rights (UDHR) in 1948 that all humans are born free and are equal in dignity and rights,

without distinction of any kind, such as racial, ethnic origin, colour, religion, gender identity and sexual

orientation or any other status.32 Even though the document fails to impose any specific legal

obligations on states, it has become highly persuasive and provided a basis for more specific binding

and justiciable international norms.

The first global human rights treaty specifically addressing the most heinous forms of bias is the

Convention on the Prevention and Punishment of the Crime of Genocide which was adopted

unanimously by the United Nations General Assembly in 1948. According to Article III.c. of this

Convention, direct and public incitement to commit genocide shall be punishable as a crime under

international law, and states undertook to prevent and punish such crimes. Genocide is defined

narrowly: it requires the intention to destroy, in whole or in part, a national, ethnical, racial or religious

group (Article II). Therefore, "incitement to genocide" could only be established in the most

straightforward case of the Rwandan genocide, where radio broadcasts instigated the civil population

against the minority ethnic group.

The Genocide Convention was in part built on the legal foundation of the International Military

(Nuremberg) Tribunal, which convicted Julius Streicher, publisher of the anti-Semitic weekly "Der

Stürmer", and subsequently Otto Dietrich, who controlled the press section in the propaganda ministry

under Joseph Goebbels from 1938 until 1945.33

The International Tribunal for Yugoslavia had also discussed Article III.c., but finally was unable to

establish the cause and effect relationship between the expressions of Vojislav Šešelj – calling for the

expulsion of the non-Serbian population – and the war crimes. Nevertheless, his responsibility was

established for instigating deportation, forcible displacement, forcible transfers, and persecution as

crimes against humanity and he was sentenced to 10 years imprisonment.34

32

Universal Declaration of Human Rights, 1948, Articles 1 and 2.

33

Timmermann, W. K., ‘Incitement in international criminal law’, International Review of the Red Cross, Vol. 88 No. 864, 2006, pp.1-30. See

also: International Military Tribunal (ITM) (1947) Trial of the major war criminals. Available at

https://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-I.pdf.

34

UN International Residual Mechanism for Criminal Tribunals, MICT-16-99, Šešelj, Vojislav.

Hate speech and hate crime in the EU and the evaluation of online content regulation approaches

PE 655.135 27

Albeit the literature differentiates genocide from hate crimes due to their different scale, and the

former’s systematic and state-mandated nature,35 genocide can be understood as the most heinous

manifestation of hatred against societal groups. The groups protected by the Genocide Convention –

national, ethnical, racial and religious groups – also have a special status in relation to hate crimes

addressed in most national criminal codes.

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) of

1965 in Articles 4 and 6 prohibits discriminatory speech and action on a significantly broader scale. It

obliges states to criminalize certain forms of hate speech and the commission of or incitement to acts

of violence against any race, group of persons of another colour or ethnic group; furthermore, states

must create the legal and institutional basis to provide effective protection and remedies against any

acts of racial discrimination, and must provide for reparation and satisfaction for damages suffered as

a result of discrimination.

Most provisions of the ICERD focus on prohibiting discriminatory action rather than speech. Article 4 of

ICERD on the criminalization of certain types of speech is sometimes criticised by advocacy groups,

such as Amnesty International, which urged the Committee on the Elimination of Racial Discrimination

(CERD) to clarify the scope of the respective Article 4a),36 in particular recommending to include the

intent to achieve a prohibited result.

ICERD’s monitoring body, CERD issued several general recommendations to address hate speech.37

Recommendation No. 35. signals a new approach by CERD, as it emphasises the relevance and potential

of alternative responses other than criminal sanctioning, including measures of educational,

informational and cultural nature.38 Importantly, it also draws attention to the "role of politicians and

other public opinion-formers in contributing to the creation of a negative climate towards groups

protected by the Convention".

The International Covenant on Civil and Political Rights (ICCPR) of 1966 (entered into force in 1976)

especially its Article 20 – as interpreted together with Article 19 – is the most relevant international

provision relating to "hate speech." Its definition is sufficiently narrowly defined: the list of protected

characteristics is short and closed (national, racial or religious hatred), it requires "advocacy", that is, an

intentional and public promotion of hatred the advocated "hatred" is supposed to constitute

incitement to discrimination, hostility or violence, i.e. illegal material actions.

The ICCPR also imposes obligations on the states to respect and to ensure rights enshrined in the

document without distinction of any kind, such as race, colour, sex, language, religion, political or other

35 OSCE/ODHIR, Prosecuting Hate Crimes: A Practical Guide, OSCE, Warsaw, 2014, pp. 24, available at

https://www.osce.org/odihr/prosecutorsguide.

36 Amnesty International, Written contribution to the thematic discussion on Racist Hate Speech and Freedom of Opinion and Expression

organized by the UN CERD, 28 August 2012, available at

https://www.amnesty.org/download/Documents/24000/ior420022012en.pdf. See ICERD 4(a): Shall declare an offence punishable by law

all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or

incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance

to racist activities, including the financing thereof.

37 See Recommendations No. 7 (1985) relating to the implementation of article 4; No. 15 (1993) on article 4, which stressed the compatibility

between article 4 and the right to freedom of expression; No. 25 (2000) on gender-related dimensions of racial discrimination; No. 27

(2000) on discrimination against Roma; No. 29 (2002) on descent; No. 30 (2004) on discrimination against non-citizens; No. 31 (2005) on

the prevention of racial discrimination in the administration and functioning of the criminal justice system; No. 34 (2011) on racial

discrimination against people of African descent, and No. 35. (2013) on combating racist hate spe ech, and current ly No. 36 . is in progress,

on preventing and combating racial profiling.

38 McGonagle, T., The Council of Europe ag ainst online hate speech: Conundrums and challenges, Exp ert Paper, Institute for Information

Law(IViR), 2013, available at https://rm.coe.int/16800c170f.

IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs

28 PE 655.135

opinion, national or social origin, property, birth or other status. States must ensure that victims of

violations of ICCPR rights are provided with an effective remedy, whether the rights were violated by a

state official or a private person. Article 6 and 7 of ICCPR on the right to life and the prohibition of

torture or cruel, inhuman, degrading treatment, in conjunction with Article 26 on the prohibition of

discrimination, impose obligations on state authorities to efficiently investigate the mentioned

substantive rights without any distinction based on the victims’ group belonging.

Whereas not listed among the traditional protected grounds, the Convention on the Rights of

Persons with Disabilities (CRPD) of 2006 in its Article 16 obliges States Parties to take all appropriate

measures to protect persons with disabilities, from all forms of exploitation, violence and abuse,

including their gender-based aspects.

Beyond the above international treaties, in the UN framework various debates and programmes

against hate speech deserve attention. One major disagreement in the 21st century was around the

distinction of blasphemy and hate speech for religious identity.39 UN Resolution 16/18 intended to

solve this contradiction, and the Rabat Plan of Action was designed as a tool to guide its

implementation. The Rabat Plan of Action clarified the relationship of Article 19 and Article 20(2) of

ICCPR, and set out practical guidance to clarify the obligations of states under Article 20(2). Most

importantly, the Rabat Plan of Action sets out a six-part threshold-test to help draw the line between

objectionable and offensive, but not punishable expressions, and illegal hate speech. The six factors

are: context, speaker, intent, content and form, reach or magnitude of the speech, and likelihood of the

harm. The particular importance of the Rabat P lan of Action l ies in its distinctive factors that are able to

separate low-value online speech from speech, which is likely to have a higher social impact.

In 2018, the UN Secretary-General launched the UN Strategy and Plan of Action on Hate Speech. The

initiative was to respond to a surge in global hate speech, which has moved into the mainstream, and

started to threaten democratic values even in established democracies. The Plan identified 13 Key

Commitments, which together represent a complex social and political strategy to fight against

intolerance – without mentioning legal restrictions of speech at all. The strategic plan relies on

searching for causes through research and data analysis, applying counter-speech in the form of

spreading knowledge and strategic communication as well as advocacy. It aims to address hate speech

through a coordinated response that tackles the root causes and drivers of hate speech, as well as its

impact on victims and societies. From the European perspective, this approach is certainly more apt to

tackle the problem of hate speech especially seen as the stepping stone of hate crimes in an era when

the dripping of hatred through the myriads of communication channels is hardly controllable without

turning off the tap.

The UN has also initiated several civil society-based action plans globally to prevent violent

extremism, in particular with respect to the terrorism. Several of these programs are rooted in the

United Nations Development Programme (UNDP), and support the design of regional, national and

local strategies with a variety of tools and plans.40 While their focus is more specific, their accumulated

39 ICCPR, Article 18.

40 For example: UNDP, How UNDP can help to prevent violent extremism, 2016,, available at

https://www.undp.org/content/dam/undp/library/Global%20Policy%20Centres/OGC/PVE%20special%20news%20update%20of%20G

P%20cluster%20-%202016.pdf.