A CRITICAL ANALYSIS OF THE CONCEPTS OF HATE SPEECH AND FREEDOM OF SPEECH IN INTERNATIONAL LAW AND TO RECONCILE THE NOTIONS OF HATE SPEECH, FREEDOM OF SPEECH, AND RESPONSIBILITY OF STATES TO PROTECT THE AFFECTED CITIZENS

Abstract.

The issue of hate speech has received significant attention from legal scholars and philosophers alike but the vast majority of this attention has been focused on presenting and critically evaluating arguments for and against hate speech bans as opposed to the prior task of conceptually analyzing the term hate speech itself. This five-part study puts right that imbalance. It goes beyond legal texts and judgments and beyond the legal concept hate speech in an attempt to understand the general concept hate speech and it does so using a range of well-known methods of conceptual analysis. its main objective is to analyze the concepts of hate speech and freedom of speech in international law and to reconcile the notions of hate speech, freedom of speech, and responsibility of states to protect the affected citizens. One important implication in this research is that when looking at the full range of ways of combating hate speech, including but not limited to the use of criminal law, there is every reason to embrace an understanding of hate speech as a heterogeneous collection of expressive phenomena and so other measures should be considered. Furthermore, it would be unsound to reject hate speech laws on the premise that they are effectively in the business of criminalizing emotions, feelings, or attitudes of hate or hatred. Hate speech is only a symptom, a manifestation of intolerance and narrow mindedness deeply rooted in society. Therefore, legal measures alone, such as restrictions to freedom of expression, are not enough. To address the problem in a comprehensive manner, we must enlighten people, change their way of thinking and broaden their perspectives, by using measures such as intercultural dialogue, education on tolerance and diversity. Hate speech poses grave dangers for the cohesion of a democratic society, the protection of human rights and the rule of law. Action against the use of hate speech should serve to protect individuals and groups of persons rather than particular beliefs, ideologies or religions. Restrictions on hate speech should not be misused to silence minorities and to suppress criticism of official policies, political opposition or religious beliefs.

CHAPTER ONE

INTRODUCTION

1.1 Introduction And Background To The Study

Globally there has been a resurgence of discriminatory and hateful speech in response to various social and political upheavals. While most democracies such as South Africa, Kenya and Cameroon provide for freedom of speech, they place limitations on this right to promote social cohesion and protect other fundamental rights such as the right to Equality and dignity. The choice to criminalize speech that falls out of the bounds of protected speech is less widely applied, this is primarily because the use of criminal sanctions to prevent hate speech is seen to be in direct contradiction to freedom of expression and other rights, and this is exacerbated by the fact that there is no agreed definition of hate speech.

History clearly shows that struggles over hate speech are nothing new; hate speech has been a century-long rift in world politics, because it pits two deeply held human values against each other; Free Speech and Equality. The introduction of hate-speech prohibitions into international law was championed in its heyday by the Soviet Union and allies. Their motive was readily apparent the communist countries sought to exploit such laws to limit free speech.

The United Nations adopted the Universal Declaration of Human Rights (UDHR) following WWII (the Second World War) and even though it does not contain any stipulations directly prohibiting hate speech.  It however contains a bold assertion in the UDHR that states ‘all human beings are born free and equal in dignity and rights. Equality was placed at the top of the international human rights agenda more than 50 years ago, it lays emphasis on the equal treatment and protection of all, implying that hate speech is a violation of other’s rights and should therefore not be allowed. There was heated discussion during the drafting period of the UDHR whether or not to allow for restrictions on the right to freedom of expression or not, the member states had many and different personal views on such restrictions and also what their purpose should be.

The atrocious acts committed during WWII motivated the nations of the world to do everything in their power to prevent the spreading of intolerance and hate rooted in the war and the events leading up to it. They also wanted to minimize the consequences of such hate and prevent that events such as those which happened in Nazi Germany, would never happen again. After WWII the Allied forces held a series of military tribunals, the Nuremberg trials (die Nürnberger Prozesse), where prominent members of political, military, judicial and economic leadership of Nazi Germany were prosecuted. One of the tribunals resulted in one of the earliest examples of conviction for the distribution of hate speech and propaganda. In the case against Julius Stretcher, the publisher of Der Stürmer, a magazine systematically instigating for Jews to be persecuted and eliminated, the tribunal found Streicher guilty, under international law, for inciting genocide (crimes against humanity). Even though the law under which he was convicted was not in place at the time his crimes were committed and Streicher‘s conviction therefore justified.

The principles put forward in that legislation are internationally agreed upon; these principles were also applied by the United Nations International Criminal Tribunal of Rwanda after the genocide in 1994. The UN Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted in 1965 and entered into force in 1969, the convention was the international society’s reaction to a wave of anti-Semitic attacks in Germany as well as it was considered to be important for the battle against colonialism and apartheid. Article 4 of same condemns propaganda and organizations attempting to justify discrimination based on the idea of racial supremacy. It obliges parties, “with due regard to the principles embodied in the Universal Declaration of Human Rights”, to adopt “immediate and positive measures” to eradicate these forms of incitement and discrimination. Specifically, it obliges parties to criminalize hate speech, hate crimes and the financing of racist activities and to prohibit and criminalize membership in organizations that “promote and incite” racial discrimination. A number of parties to the convention have reservations on this article, and interpret it as prohibiting, or requiring measures that infringe upon freedom of speech, association and assembly. Since the adoption of CERD there has been rapid development and change as regards prejudice and discrimination in the world. Today, people are subject to prejudice and discrimination on various discrimination grounds, not only those included in CERD. Discrimination against individuals or a group of individuals on more than one discrimination grounds is now more and more being put into focus. To be able to counter this development and the seriousness of multi-faceted discrimination, and to ensure that all those discriminated against enjoy protection, the UN Committee on the Elimination of Racial Discrimination (CERD) has gradually broadened its scope and added discrimination grounds through intersectionality. In their General recommendations, CERD addresses gender (no.25) descent (no. 29). Approaching prejudice and discrimination comprehensively and intersectionality, facilitates actions against discrimination and the many forms and embodiments of hate speech. It is necessary to have a broad perspective of hate speech and discrimination so as not to exclude various forms of discrimination or discrimination grounds which might lead to vulnerable individuals, or groups of individuals, not being protected. This has never been as pressing as now, since advocates of hate seek all ways and means to disseminate hate speech.

A person’s thoughts affect only him/her and no other people unless he/she expresses them or act them out these thoughts set events in motion which are likely to have effects, therefore, it is always important to take words seriously and think before letting them out because it may become necessary to react when words do not express positive thoughts or views, but harmful, demeaning and hateful opinions towards a specific individual or a group of individuals. If not counteracted, hate speech will gradually be normalized and accepted. New phrases and words which are demeaning and hateful are caught on a daily and shortly they become part of the day to day discourse.  Words are also the first tool we use to change attitudes, norms, dos and don’ts in our society.

Hate speech is present in all societies in degree and intensity it affects and undermines the rights of the targeted person to Equality and freedom from discrimination (cornerstone of human rights). Left unanswered or uncontained hate speech can and has led to fatal disasters, not only does it promote prejudice and hate, which in time can undermine the roots of society, it also creates a divide between societal groups and eventually lead to deep divides in the social cohesion.

The genocide in Rwanda is a striking example of the effect and consequences of hate speech. This genocide was as a result of the continuous hate speech that was continuously spread especially through the radio (Radio-Television Libre Des Milles Collines) inciting and encouraging violence of the Hutsi against the Tutsi using words like cockroaches to undermine the Tutsi and establish their supremacy over the minority tribe.

A more recent example is the case of Cameroon where the two English speaking regions has been in constant and continuous rising armed conflict, the top officials and some important personalities have made the situation worse by spreading hate speech even on national television, radios and newspapers. They have used words such as Dogs, Rat,’’ Ambazozo’’ referring to the Anglophones, all these has fueled the already delicate situation and its gradually leading to what may be referred to as a Genocide if effective measures are not taken handle the situation.

Nazi Germany is another striking example as well as former Yugoslavia, where media, ruled by opposing groups, spewed hatred against national minority groups which escalated the conflict and finally led to mass murders of the Jews.

In later years, the number of hate sites has drastically increased and social media, such as Facebook, whatSapp and Twitter have further added to this evolution. Most people do not realize that a few words on Facebook or Twitter can sow a seed or an idea in the mind of someone who already has negative views or dangerous thoughts against specific groups or individuals.

The financial crisis, economic instability, slow economic progress and rising unemployment rates all over the world have led to social unrest and an increase in racism and xenophobia as well as discrimination against various groups in policy making and execution. Along with this negative development there is also a rise in hate speech and propaganda in the political debate. Political parties with a policy of racism and xenophobia have had substantial rise in following and they increasingly use hate speech promoting discrimination and violation of rights of various groups in society

The afore mentioned and other similar events have led to international realization of how powerful hate speech can be and the international consensus is on hate speech and hate propaganda to be prohibited by law. It is therefore extremely important that the administration as well as the general population counter this development, by legislation, awareness raising and education urging people to embrace diversity

1.2 Statement Of The Research Problem

Over the last few decades the issue of hate speech has been widely debated by scholars in multiple fields of knowledge. The subject of hate speech was developed through the collective efforts of linguists and sociologists, philosophers and historians, psychologists, anthropologists, lawyers and political scientists, communication and media experts and even computer scientists, obviously, each one of the mentioned disciplines has its specific area of attention within the interdisciplinary domain of hate speech.

There are those who argue that any attempt to curtail someone’s expression of ideas amounts to man infringement on his or her constitutionally protected freedom of speech. Others argue that hate speech does nothing but fuel the flames of brutality, as it has bedeviled communities for a very long time.

In democratic societies few people believe that political, social, cultural views should be suppressed today, the trouble comes when one person utters words that he or she believes are protected as freedom of speech but someone hearing the same words considers it as hate speech. There is a significant problem here which leads us to this question “what is hate speech”? The broad and complex nature of hate speech creates a lot of confusion and misunderstanding, misinterpretation, given that it does not have a universally accepted definition. Every community and constitution has its own definition thus what can be regarded as hate speech in one community may not be the same in another.

Diverse groups are targeted by hate speech and individuals as well based on one or more discrimination grounds The perpetrators in these cases are many and even though their expressions of hate may affect those subject to it to various degrees, every word uttered carries responsibility and often a small seed sown may incite a person to commit atrocious deeds or to exercise injustice in some way or form.

There are many examples of hate speech, but they not being addressed, has led to certain groups of people being disrespected and discriminated against, and have been considered to be legitimate. There is a problem with the institutional policies and legal mechanisms put in place in the fight against hate speech. Regardless of the fact that there are no specific international laws prohibiting Hate speech there are a number of treaties, policies that have been adopted in the struggle to combat it, but the continuous rise in hate speech and crimes suggests that these policies, treaties are not effective in the fight against hate speech and crime. Most of these mechanisms have failed to understand the smallest words, actions which they neglect because they believe to be insignificant are usually the starting point to a larger outcome thus there is a lot to be done when it comes to stopping the possibility of the spread of hate speech from the very slightest slangs.

The most serious instances have led to a deep divide in the social cohesion and even to conflict it is fueling hate crimes and violence towards minorities and marginalized groups, challenging the cohesion of any society, the protection of human rights, and the rule of law.

Past experiences clearly show how severe the consequences of hate speech can be and the necessity of education on the subject. That is why there is a need for effective confrontation of hate speech, including the recognition of the importance of freedom of expression, tolerance, and respect for equal dignity. Also, the involvement and commitment of a wide range of private and civil society actors, in addition to public ones, is necessary.

Many may believe that hate speech should be allowed due to belief of freedom of speech but whether it is allowed or not does not make it right it most likely have devastating consequences such as deaths, riots, physical abuse, and dehumanization.

Striking the appropriate balance between these countervailing issues on interest on the one hand and freedom of speech protection on the other is difficult because their objectives pull in different directions. The difficulty in defining the contours of freedom of speech and the extent of legitimate limitation is a problem

Open discussions on issues of the day (hate speech, freedom of speech) should continue and be encouraged since they are at the essence of higher education. But we need to always make sure that civility and respect towards one another as humans are upheld.

1.3 Research Questions

Based on the statement of the problem the following research questions drive this research:

1. What is hate speech, the causes and the effects?
2. Is the protection of freedom of speech more important than the devastating consequences of hate speech?
3. Is hate speech mutually inclusive or exclusive in a democratic society?
4. What are the legal and institutional measures put in place to combat hate speech and How effective has the legal and institutional measures put in place been in combating hate speech?
5. What policy recommendations are necessary to combat hate speech?