Shannon Maree Torrens
Early next month I will be attending and speaking at the 14th Doha Interfaith Dialogue Conference, which will focus this year on the intersection of religion and hate speech. This will be my second time speaking at this enriching gathering of practitioners, academics and other prominent figures, all with a shared interest in interfaith communication. The Conference aspires to foster understanding between the world’s religions on issues of global significance, such as human rights and humanitarian concerns, with a view to pursuing peace and justice globally. The Doha Interfaith Dialogue is organised by the Doha International Centre for Interfaith Dialogue (DICID) and its Chairperson Professor Ibrahim Saleh K Al-Naimi.
This year I will be speaking on the prosecution of hate speech at the highest level, at the International Criminal Court (ICC) in The Hague. I am an international lawyer and specialise in international legal responses to mass atrocities through the prosecution of international crimes such as crimes against humanity, war crimes and genocide. From my perspective, I see the need to prosecute hate speech more frequently and effectively through international courts and tribunals than has previously been the case.
It is unfortunately not uncommon for mass atrocities that derive from civil wars or regional conflicts to be preceded by hate speech, which is utilised as a weapon of manipulation and power consolidation. In the context of conflict, hate speech is normally perpetrated against ethnic and religious minorities. A negative narrative is established by one group, which depicts the minority as being problematic, oppositional to the greater cause or deeply offensive in some way and that narrative is then used to justify the subsequent violence that is levelled against the minority. Hate speech is therefore a method or tactic used to incite violence and a form of propaganda that encourages and normalises the perpetration of serious crimes against the individuals that comprise the targeted group.
History contains innumerable examples. During the Holocaust, Jewish people were referred to as “dirty jews” in Nazi propaganda before being exterminated en masse. During the 1994 Rwandan genocide, a Rwandan radio station ordered the extermination of the Tutsi minority, calling them “cockroaches” and “rats”. During the wars in the former Yugoslavia in the 1990s, Serbia’s state-run media was used by Milošević to disseminate hateful propaganda, framing other ethnicities as “traitors”, “terrorists” and “rapists”.
We see similar hate speech utilised in more modern conflicts today, such as the frequent mention of the Yazidi people in ISIS media using a range of dehumanising phrases such as “devil worshippers” and there have been accusations that Buddhist Monks have engaged in hate speech towards Rohingya Muslims. Illustrating the movement of hate speech to the online realm, there have been references to Palestinians on Israeli social media using discriminatory and racist terms, labelling them as “Arabs” to deny their Palestinian identity and calling for their rape and murder.
Despite its frequent occurrence, defining hate speech at the international level is not simple, due to a lack of consensus on the issue. To date there is no commonly agreed definition of hate speech under international law. This impedes the prosecution of hate speech at the highest criminal courts in the world, rendering hate speech an unsettled and contested area of international criminal justice. Hate speech has been responded to at the modern international criminal courts and tribunals, not specifically as the crime of “hate speech”, but rather as a crime against humanity, specifically as persecution, as incitement to commit genocide and as the mode of liability of instigation.
Whilst a number of international courts and tribunals have been established in the past twenty-five years and hate speech has previously been addressed at the Yugoslav and Rwandan Tribunals, the focus of international prosecutions is now on the International Criminal Court, the world’s first permanent response to international crime. The ICC Prosecutor and the Court itself have both responded to hate speech in a limited and conflicted way, such as in the prominent Gbagbo and Goudé Case, which looked at problematic speeches delivered in the Côte D’Ivoire following post-election violence in the country.
Due to the influence of hate speech on facilitating conflict and the commission of international crimes, it is therefore important that the ICC takes greater notice of incidents of hate speech and in doing so provides for a more effective prosecution of these crimes under its auspices. This would not only be beneficial for victims who seek redress, but it would also provide a warning to leaders who might engage in hate speech that there are repercussions for their actions, and that they might one day find themselves in The Hague.
There are however a number of legal, political and logistical hurdles that must be navigated before hate speech can be prosecuted. The legal framework of the Rome Statute is particularly weak with respect to hate speech, with no specific mention of hate speech in the Statute. That is before we even consider the highly selective and political nature of international criminal prosecutions, evidentiary difficulties associated with the ICC requiring the cooperation of states to obtain evidence and the varying characterisations a Court can give to a particular communication of hate speech. In addition to this, the prosecution of hate speech must carefully navigate respect for free speech under international human rights law and the need to respond to communications that incite grave crimes such as genocide.
Whilst the increased prosecution of hate speech at the international level should be encouraged going forward, we must of course remember that it would be preferable if there was no need for prosecutions in the first place. Such a situation only arises when there is a greater focus on tolerance, communication and collaboration, in addition to a more serious consideration of issues that are of concern to religious and ethnic minorities, such as will occur at the Doha Interfaith Dialogue. Through discussing issues of interfaith concern with others who may not hold similar views, we can better understand not only others, but also ourselves and potentially avoid or at least more effectively respond to conflict and international crimes.
*Shannon Maree Torrens is an international and human rights lawyer from Sydney,Australia.
