Hate speech and incitement to further crimes against humanity and war crimes in the framework of the international criminal court
| Autor | Luis Daniel Mantilla Arango |
| Cargo del Autor | J.D. (honors), Pontifical Xavierian University, Bogota |
| Páginas | 351-395 |
351
Hate speech and incitiement
to further crimes against humanity
and war crimes in the framework
of the international criminal court
Luis Daniel Mantilla Arango*
Introduction
After the second world war, Julius Streicher was indicted and convicted
before the International Military Tribunal for his alleged responsibility in
the commission of crimes against humanity. e Tribunal found that he
“infected the German mind with the virus of anti-Semitism and incited
the German people to active persecution”1 through publications made
between 1938 and 1941 in the weekly tabloid Der Stürmer. Afterwards,
under Control Council Law No. 10 and before the United States Nurem-
berg Military Tribunal, similar judgement was passed on Otto Dietrich,
who as State Secretary in the German Ministry of Propaganda “created,
formulated and disseminated inammatory teachings which incited the
* J.D. (honors), Pontical Xavierian University, Bogota; Criminal Law Postgraduate Diploma,
Rosario University, Bogota; Constitutional Law Postgraduate Diploma (honors), Pontical Xavierian
University, Bogota; L.L.M. International Criminal Law (distinction), University of Sussex.
1 ‘Trial of the Major War Criminals before the International Military Tribunal, Vol. I’ (Military
Legal Resources, 14 November 1945, 1 October 1946). https://www.loc.gov/rr/frd/Military_Law/
NT_major-war-criminals.html (accessed 14 February, 2018), p.302.
Derechos Humanos y empresas y Sistema Interamericano de Derechos Humanos
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Germans to the active persecution of ‘political and racial undesirables.”2
Since the very beginning of its existence International Criminal Law ()
was concerned with what later came to be known as hate speech, its eects
as fuel for violence and its capacity to provoke crime. e grounds for its
further study were then laid.3
Half a century later, the 4 and 5 were created and a signicant
amount of judgements related to hate speech were delivered by the latter.
ese constitute the bulk of the international case law on the matter and
provided fertile ground for the development of the comprehension of
hateful rhetoric as a punishable behaviour,6 either as incitement to commit
genocide7 or the crime against humanity of persecution.8
Nevertheless, such progress does not seem to be reected on the
framework of the , where no thorough and clear formula to prosecute
those who engage in these acts exists. e Rome Statute provisions, as some
commentators hold, contemplates exclusively one way to deal with hate
speech, namely, the gure of incitement to commit genocide.9 Incitement
to commit crimes against humanity and war crimes appears to be excluded
from the scope of the Statute.
2 Hardy, Alexander G. “Hitler’s Secret Weapon: e “Managed Press” and Propaganda
Machine of Nazi Germany”. Cited by Gordon, Gregory S. “e Forgotten Nuremberg Hate
Speech Case: Otto Dietrich and the Future of Persecution Law”, Ohio State Law Journal 75 no. 3
(2014), 585.
3 Ibíd.
4 Res 827 (25 May 1993) Doc //827.
5 Res 955 (8 November 1994) Doc //955.
6 Gordon, Gregory S. “Hate Speech and Persecution: A Contextual Approach”, Vanderbilt
Journal of Transitional Law 46 no. 2 (2013), 303.
7 Prosecutor v. Akayesu, Judgement, Trial Chamber I, -96-4-T, 2 September 1998;
Prosecutor v. Kambanda, Judgement and Sentence, Trial Chamber I, -97-23-S, 4 September
1998; Prosecutor v. Niyitegeka, Judgement, Trial Chamber I, -96-14-T, 16 May 2003.
8 Prosecutor v. Ruggiu, Judgement and Sentence, Trial Chamber I, -97-32-I, 1 June 2000;
Prosecutor v. Nahimana et al., Judgement and Sentence, Trial Chamber I, -99-52-T, 3 December
2003.
9 Timmermann, Wibke K., “Inciting Speech in the Former Yugoslavia”, Journal of International
Criminal Justice 15 no. 1 (2017), 155. What is more, some scholars suggest that the way in which
the Rome Statute deals with incitement to genocide is “weak” in comparison with the Statutes of
the and . See Davies, omas E., “How the Rome Statute Weakens the International
Prohibition on Incitement to Genocide”, Harvard Human Rights Journal 22 (2009), 245.
Hate speech and incitiement to further crimes against humanity and war crimes in the framework…
353
An attempt to prosecute the incitement of crimes against humanity
of murder, deportation or forcible transfer of population, and persecution
through hateful broadcasts, was made in the case of Joshua Arap Sang10, but
it failed when the Court decided to vacate the charges without prejudice.11
During the past few years the Oce of the Prosecutor has often released
statements announcing its resolve to investigate and prosecute individuals
who incite or encourage the commission of international crimes in general,
but no clarity as to the applicable mode of liability or the particular provi-
sions that could be invoked for such purpose has been made.12
One can note, therefore, that hateful speech and its eects as a c atalyst
for the commission of oences is of practical interest to the contemporary
project, crystalized today 1n the and its organs, but there seems to
be diculties in eectively grasping the adequate categories and mecha-
nisms to do so.
e fact that appears to lack a comprehensive conceptual under-
standing of what hate speech is, and its contours, seems to further enhance
these complications. Notably, the framework built by the has been
deemed to be inconsistent and ambiguous,13 while some of its decisions
on the matter have been criticized for failing to attain an adequate ex-
planation on how hate speech may or may not incite the commission of
10 Prosecutor v. Ruto et al., Decision on the Conrmation of Charges Pursuant to Article 61(7)
(a) and (b) of the Rome Statute, Pre-Trial Chamber II, -01/09-01/11, 23 January 2012.
11 Prosecutor v. Ruto et al., Decision on the Defence Applications for Judgments of Acquittal,
Trial Chamber V(A), -01/09-01/11, 5 April 2016.
12 Oce of the Prosecutor, Statement by the Prosecutor of the International Criminal Court, Fatou
Bensouda, ahead of elections in Nigeria: I reiterate my call to refrain from violence (15 March 2015).
Also, Oce of the Prosecutor, Statement by the Prosecutor of the International Criminal Court, Fatou
Bensouda concerning the situation in the Republic of the Philippines (12 October 2016); Oce of the
Prosecutor, Statement by the Prosecutor of the International Criminal Court, Fatou Bensouda, ahead
of general elections in the Central African Republic: We will record any instance of violence or incite-
ment to violence (22 December 2015); Oce of the Prosecutor, Statement by the Prosecutor of the
International Criminal Court, Fatou Bensouda, regarding the recent upsurge of violence in the Central
African Republic (29 September 2015); Oce of the Prosecutor, Statement by the Prosecutor of the
International Criminal Court, Fatou Bensouda, regarding the recent pre-election violence in Burundi (7
May 2015).
13 Gordon, Gregory S. “Music and Genocide: Harmonizing Coherence, Freedom and Non-
Violence in Incitement Law”, Santa Clara Law Review 50 (2010), 607.
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