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“When Hateful Speech Is Transformed Into Hateful Deeds”:
Examining Freedom of Speech, Hate Speech, and Incitement to Genocide

Incitement USHMM

Panelists at “Hate Speech and Incitement to Genocide,” US Holocaust Memorial Museum

By MICHELLE EBERHARD

Human rights simultaneously create duties and establish a basis for claims – that is, they emphasize the responsibility that one entity, be it state or individual, has towards another entity, as well as how an individual might be able to enforce another entity’s guarantee of a particular provision. Given the wide spectrum of rights that have been codified in such documents as the Universal Declaration of Human Rights, the International Covenant on Economic and Social Rights, and the International Covenant on Civil and Political Rights, one right can, under certain circumstances, restrict the complete fulfillment of an obligation provided under another right, by virtue of what each is attempting to protect. One example of this tension is the debate between the right to freedom of expression and the right to be free of attacks on one’s own rights and reputation that can potentially result from inflammatory speech.

When it comes to genocide prevention, the most important component of this debate is how to balance freedom of expression with speech that falls under the category of “direct and public incitement to genocide,” a crime listed under Article III of the Genocide Convention. Indeed, individuals like Julius Streicher of Germany, as well as Hassan Ngeze, Ferdinand Nahimana, and Jean-Bosco Barayagwiza of Rwanda, have all been convicted for public incitement to genocide. Despite these court cases, however, the issue of whether or not something qualifies as incitement remains open to interpretation and context. Indeed, not all inflammatory speech can or should be considered incitement, as freedom of expression is a necessary cornerstone of democracy. As the United States Holocaust Memorial Museum (USHMM) states on its website, “incitement to commit genocide [requires] a calling on the audience (be they listeners or readers) to take action of some kind. Absent such a call, inflammatory language may qualify as hate speech but does not constitute incitement.”

To further elucidate the distinction between these two sets of rights, as well as to elaborate on efforts being made to combat incitement, the USHMM, in conjunction with the United Nations Office on Genocide Prevention and the Responsibility to Protect and the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, held a panel discussion February 5 titled Hate Speech and Incitement to Genocide.”

After opening remarks by Susan Bloomfield, director of the USHMM, five panelists guided by moderator Mike Abramowitz, director of the Center for the Prevention of Genocide, each spoke briefly on their area of expertise and then responded to questions posed by Abramowitz himself.

The first speaker tasked with answering Bloomfield’s question – “How we can counter dissemination of inflammatory speech while protecting the right to free expression?” – was the ambassador of Norway to the United States, Wegger Strømmen, who began by commenting on his personal introduction to human rights in the 1970s, which consisted of joining Amnesty International as an activist, accompanied by other young people who “thought we were going to change the world significantly.” Acknowledging that “we have a much more complex reality” today, particularly in regards to speech, as “more people have access to a microphone” than they used to, Strømmen offered this as a remedy to the struggle for balance between freedom of speech and avoiding incitement: “We should remember that the same tools that can be used to . . . cause incitement to violence can also be used to monitor them, to understand them.” In other words, he stated that “rational people” should be able to counter extremists with preventive measures that emerge from the same tools and tactics associated with incitement.

Strømmen was followed by Adama Dieng, the UN special adviser on prevention of genocide. Dieng pointed to preparations for the recently held Kenyan elections, indicating that “there have been numerous initiatives to develop ways to . . . counter the kind of hate speech that contributed to the incitement of that violence, in order to prevent a recurrence this time around.” Additionally, he mentioned that the Office of the High Commissioner for Human Rights (OHCHR) has held a series of expert workshops that led to the “identification of three main points to be considered when seeking to strengthen national and international efforts to curb incitement.”

First, the OHCHR acknowledged that Article 20(2) of the International Covenant on Civil and Political Rights, which states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law,” should only be invoked for exceptional or extraordinary circumstances. Second, Dieng stressed the importance of “acknowledging that the human sentiment of hatred and discrimination go deeper than the offenses of discrimination, hate crimes and incitement. We must recognize the limits of legislation to combat hate speech and incitement. We need to develop a multilayered approach to fight the root causes of hate speech, racism, and discrimination.” In this spirit, he indicated the role of the promotion of human rights and tolerance, though he hesitated to place all is faith in the latter, saying that “when we tolerate someone, we accept, but we don’t embrace.” Perhaps it is human rights, then, that can fill this gap and thus complement tolerance education. Finally, Dieng stated that “there is a need for increased national and international monitoring capacities for early warning purposes,” which could be achieved by creative new technologies and media.

Susan Benesch, project director for the World Policy Institute’s “Dangerous Speech on the Road to Mass Violence,” was next.  She presented her theory on dangerous speech, which she defines as “certain speech, some subset of speech within this large, vague universe of hate speech . . . [that  has] a special, terrible power . . . to move groups of people so that they will condone and eventually take part in atrocities.” Two hallmarks of this she mentioned are dehumanizing language that associates human beings with animals (for example, the Nazis’ reference to Jews as pests or vermin, and the Hutus’ reference to Tutsis as inyenzi, or cockroaches), and what she called “accusation in a mirror.” This occurs when an “inflammatory speaker tells his audience that the other group, the future victims, are coming to get them,” and thus creates an “analogue of the one iron-clad defense to murder in every single legal system: self-defense.” When this happens, violence becomes both acceptable and necessary. In addition, Benesch pointed to a set of five criteria for making an educated guess on the level of danger that particular speech might lead to: the speaker, the audience, the speech act itself, historical and social context, and means of dissemination of the speech.

After Benesch came Frank LaRue, who agreed on the importance of criminalizing incitement to genocide, but emphasized the importance of having a threshold for doing so. As he remarked, it is “very important to maintain the idea that when you’re limiting speech, you’re going to the exception of the rule; the norm should be the openness.” Importantly, he also identified benchmarks for determining this threshold, which include intent, severity and extent of the content, the feasibility and immediacy of harm being produced, and the context within a specific country. When prompted by Abramowitz on a follow-up question, LaRue added that “oftentimes governments are using limitations, which they try to justify as limiting hate speech . . . but they’re actually limiting legitimate debate and dialogue,” which underscores the necessity of remaining aware of country-specific context in evaluating hate speech and incitement.

George Weiss, founder of Radio La Benevolencija Humanitarian Tools Foundation (La Benevolencija), followed LaRue. He explained the work that his organization has done, particularly in Rwanda over the past 10 years, which began when psychologists were invited by the Rwandan government to teach comparative psychology in the country. Noting that studies generated by Yale, Princeton, and New York University had all evaluated the program and produced positive feedback, Weiss reiterated that when audiences like the Rwandan public are afraid of what they are not accustomed to – for example, democratic principles – you must “reach them by giving them virtual examples that they respect,” which are often archetypal or heroic in nature. One example of this is a soap opera titled “New Dawn,” which has run in Rwanda since 2003 and remains the most popular soap opera in the country. As Weiss acknowledged toward the end of his remarks, “You don’t only change knowledge. You embed knowledge, and that has to lead to attitude change.”  Indeed, this is the goal of programs like “New Dawn” and similar projects created by La Benevolencija.

The last panelist was Aidan White, director of the Ethical Journalism Network, who stressed a return to the traditional values of journalism. Citing political manipulation and economic and professional crises as having undermined these efforts in recent years, White emphasized that journalism is different from free expression, in that journalism is “constrained expression – you can’t just say what you want to say.” Instead, White argued, journalists must be motivated by “cardinal principles,” including truth, independence, impartiality, accountability, and “[showing] humanity” in the way they do their work.

A range of topics were further extrapolated on as the moderator Abramowitz facilitated discussion on some of the points made by the panelists. This included issues pertaining to particular countries like Libya, Syria, and Iran, as well as Greece, which Weiss pointed out is the first country where a neo-Nazi group has been elected to Parliament. Given that this group, Golden Dawn, has “openly said that the Nazis and Hitler are their role models, [and] that they only got elected into parliament to destroy democracy,” the future of what Weiss refers to as the “destructuralization of Greek society” is certainly in question. White also responded to this, stating, “We need journalism . . . to give us informed background, to give us context, and to give us really important analysis of the consequence of events and how that’s going to affect people’s lives.”

When the conversation moved back to solutions for the debate over freedom of expression, LaRue commented that “never should intervention be censorship,” and instead that “the intervention and the response has to be positive speech.” Benesch supported this statement when she answered a related question, from Abramowitz, on why it is potentially risky to limit speech. She responded by noting that doing so “is to shut down the opportunity to debate, to air grievances, legitimate or not legitimate . . . and if you shut that down, that may in fact increase the likelihood of mass violence itself.” Therefore, while the fine lines that demarcate hate speech, incitement, and freedom of speech remain malleable, advancements made at multiple levels within the international community have certainly added to a greater contextualization of how we might eventually determine more fixed guidelines for establishing each of these boundaries.

Photo: blogs.ushmm.org

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Part 3 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.

By MARISSA GOLDFADEN

Topic 3: UN legal instruments protecting minorities

Section 1: Introduction to treaties

A treaty is a legal agreement between states, drafted by them. Within the UN, when the draft is completed, the General Assembly approves or adopts the text. The latter happens through a vote or by consensus. Each state must then decide whether to become a party to the treaty. If a state decides to become a party to the treaty, it must sign the treaty, showing its intention to become legally bound in the future. The state then ratifies the treaty, confirming it will be legally bound by it. This can also be achieved through accession (ratification without a prior signature) or succession, meaning a state expresses its willingness to be bound by international agreements that were entered into by a predecessor state or states. After a certain number of states have ratified, acceded or succeeded to a treaty, the treaty ‘enters into force,’ whereby it becomes legally effective for those states.

When a state ratifies, accedes to, or succeeds to a treaty, it can modify some of the provisions by making a reservation–a statement that changes, or even negates, the provision in an article or part of an article of a treaty. MRG defines an article as “an item in a treaty that lays out an obligation of the states that are bound by the treaty.” Reservations are allowed, except if the treaty expressly forbids it, or if the reservation is ‘incompatible with the object and purpose of the treaty.’ States parties to a treaty can enter a declaration, often a definition or a clarification of what the state believes the treaty provision to mean. MRG points out here that there are two uses of the term ‘Declaration’ in the context of international law:

  • The main use of the term is as an international agreement between states that is not legally binding. For example, the Universal Declaration of Human Rights (UDHR) and the UN Declaration on the Rights of Minorities (UNDM).
  • As seen here, a declaration can also be a statement of clarification about a provision of a treaty.

Treaties have both strengths and weaknesses. Their strength lies in the fact that unlike declarations, treaties are legally binding. Moreover, when a state ratifies an international human rights treaty, it is compelled to adjust domestic legislation in order to comply with treaty legislation. On the flip side, a treaty is only legally binding on the states which have ratified it. Reservations and declarations to human rights treaties can also constitute a major problem.

Section 2: UN treaties and minorities

There are eight main UN treaties protecting a range of human rights:

  • International Covenant on Civil and Political Rights (ICCPR)
    • Article 27 of the ICCPR specifically refers to minorities. It is the main legally binding provision on minorities in human rights law. It provides that persons belonging to minorities ‘shall not be denied’ the right ‘to enjoy their own culture, to profess and practice their own religion, or to use their own language.’
  • International Covenant on Economic, Social and Cultural Rights (ICESCR)
  • International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
  • International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
  • Convention Against Torture (CAT)
  • Convention on the Rights of the Child (CRC)
  • International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)
  • International Convention on the Rights of Persons with Disabilities (CRPD)

Another important treaty relating to minority rights is the International Convention on the Prevention and Punishment of the Crime of Genocide. Article I states, “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” Article II defines genocide.

In order to address the issue of governments complying with treaty provisions, the UN has put in place human rights monitoring committees, so-called treaty monitoring bodies made up of human rights experts from different states. These experts are nominated by their governments, elected by states party to the treaties for fixed, renewable four-year terms, and independent, i.e., not representative of their state’s interests.

A treaty monitoring body has been created for each human rights treaty:

Human Rights Treaty Treaty Monitoring Body
International Covenant on Civil and Political Rights (ICCPR) Human Rights Committee (CCPR)
International Covenant on Economic, Social and Cultural Rights (ICESCR) Committee on Economic, Social and Cultural Rights (CESCR)
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Committee on the Elimination of Racial Discrimination (CERD)
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee on the Elimination of Discrimination against Women (CEDAW)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT) Committee Against Torture (CAT)
Convention on the Rights of the Child (CRC) Committee on the Rights of the Child (CRC)
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW)
Convention on the Rights of Persons with Disabilities (CRPD) Committee on the Right of Persons with Disabilities (CRPD)

Treaty-monitoring bodies perform four main functions: reviewing state reports, interpreting the treaty, considering individual complaints, and thematic/general discussions.

Image: gistprobono.org

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