Freedom of Speech and Incitement to Criminal Activity

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FREEDOM OF SPEECH AND INCITEMENT TO
CRIMINAL ACTIVITY: A DELICATE
BALANCE

NAVANETHEM PILLAY∗

INTRODUCTION

Freedom of speech is a fundamental right recognized in international
law and entrenched in most national constitutions. However, a balance
needs to be maintained to ensure the protection of other rights. Any
derogation, restriction or criminalisation of speech in the name of the
protection of other rights or security interests has the potential to impact
freedom of expression, and courts have striven to find the proper balance
between protected speech and prohibited expression.

Freedom of expression and freedom from discrimination are not
incompatible principles of law. Hate speech is not protected speech under
international law. In fact, governments have an obligation under
international law to prohibit any advocacy of national, religious, racial or
ethnic hatred that constitutes incitement to discrimination, hostility or
violence. A great number of countries around the world, including Rwanda,
have domestic laws that ban advocacy of discriminatory hate, in
recognition of the danger it represents and the harm it causes. It is now well
established in international and national jurisprudence that hate speech that
expresses ethnic and other forms of discrimination violates the norm of
customary international law prohibiting discrimination. Within this norm of
customary international law, the prohibition of advocacy of discrimination
and incitement to violence is increasingly important as the world confronts
current conflicts and international acts of terrorism against civilian
populations.

The mass communication media, particularly since the 9/11 attacks in

∗ U.N. High Commissioner for Human Rights, Former Judge of the Appeals Chamber
of the International Criminal Court, and Former President of the International
Criminal Tribunal for Rwanda (ICTR).

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the United States, is under focus because of their importance in
communicating information and giving exposure to violations. One
academic commentator has written that post-9/11 culture and mass
communication have promoted such a strong climate of fear of crime as to
engender an uncritical acceptance of excessive and even illegal state
responses to crimes:

The crisis of our age is about symbolic representations that
lead good people to do “dirty work,” believe lies and support
unlawful actions that kill thousands of people. My general
argument is that this is all a feature of the politics of fear, or
decision-makers promotion and use of audience beliefs and
assumptions about danger, risk and fear in order to achieve
goals. . .My assumption is that under certain circumstances,
political power wielders will go as far as they can until
established institutional checks halt the transgressions.1

A movement toward regulating hate propaganda is fast gaining
momentum throughout the world. Internet hate speech is of particular
interest because the Internet is available in all countries and provides access
to vast amounts of material. In a 2000 case in France, Yahoo, Inc. was held
liable for allowing French citizens access to sites that sold Nazi
memorabilia.2 Current regulation of hate speech seeks to protect against,
first, the harm of potential violence, which refers to the propensity of hate
speech to incite and cause violence, not only physical harm but the harm
created by engendering fear, suspicion, and alienation; and second, to
protect against harms affecting human dignity. States are obliged to protect
their citizens against violence, and therefore they have a compelling
interest in regulating speech.

The concept of human dignity played an important role in Europe and
South Africa in forming constitutional standards that the government must
enforce to ensure the rights of its citizens. In the case of Khumalo v.
Holomisa, involving a defamation claim based on an alleged violation of
human dignity, the South African Constitutional Court balanced both
freedom of expression and human dignity and stated that free speech must
be “construed in the context of other values enshrined in our Constitution.
In particular, the values of human dignity, freedom and equality.”3

1. David L. Altheide, Terrorism, Civil Society and Legal Culture: The Mass Media,
Crime and Terrorism, 4 J. INT’L CRIM. JUST. 982, 982-83 (2006).

2. See Ligue contre le racisme et l'antisémitisme et Union des étudiants juifs de France
c. Yahoo! Inc. et Societe Yahoo! France [LICRA v. Yahoo!], Tribunal de grande
instance [T.G.I.] [ordinary court of original jurisdiction] Paris, Nov. 20, 2000, 3, obs.
J. Gomez (Fr.).

3. Khumalo & Others v Holomisa 2002 (5) SA 401 (CC) at 25 (S. Afr.).

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Freedom of expression as understood in the United States does not
address the harms of speech to the same extent as in states whose
constitutions embrace the concept of human dignity. Hate speech may be
regulated in the United States if it meets the test expounded in
Brandenburg v. Ohio:

[T]he constitutional guarantees of free speech and free press
do not permit a State to forbid or proscribe advocacy of the
use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and
is likely to incite or produce such action.4

I. THE ICTR, IN PROSECUTOR V. NAHIMANA, HELD THAT
INTERNATIONAL LAW CODIFIES EVOLVING UNIVERSAL FREEDOM OF

SPEECH STANDARDS

In Prosecutor v. Nahimana, Defence Counsel urged the ICTR to
follow American law, considered by Counsel to be strongly speech-
protective, as a standard to ensure universal acceptance and legitimacy of
the Tribunal’s jurisprudence.5 However, the Trial Chamber considered
international law, which “has been well developed in the areas of freedom
from discrimination and freedom of expression, to be the point of reference
for its consideration of these issues, noting that domestic law varies widely
while international law codifies evolving universal standards.”6 The Trial
Chamber noted that “the jurisprudence of the United States also accepts the
fundamental principles set forth in international law and has recognised in
its domestic law that incitement to violence, threats, libel, false advertising,
obscenity, and child pornography are among those forms of expression that
fall outside the scope of freedom of speech.”7 To this end, the Chamber
undertook a review of international law and jurisprudence on incitement to
discrimination and violence, as a helpful guide to the assessment of
criminal accountability for direct and public incitement to genocide, in light
of the fundamental right of freedom of expression.

A. Applicable International Law

International Law protects both the right to be free from
discrimination and the right to freedom of expression. According to Article

4. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

5. See Prosecutor v. Nahimana, Case No. ICTR 99-52-T, Judgment, ¶ 1010 (Dec. 3,
2003).

6. Id.
7. Id. (citing Brandenburg, 395 U.S. at 447).

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19 of The Universal Declaration of Human Rights: “[e]veryone has the
right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.”8
Article 19, however, was potentially tempered by Article 29, paragraph 2:

In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law
solely for the purpose of securing due recognition and respect
for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare
in a democratic society.9

The International Covenant on Civil and Political Rights provides in
Article 19(2) that: “[e]veryone shall have the right to freedom of
expression;” while noting in Article 19(3) that the exercise of this right
“carries with it special duties and responsibilities” and may therefore be
subject to certain restrictions, such as “respect of the rights or reputations
of others [and] the protection of national security or of public order, or of
public health or morals.”10 In its interpretation of this language, in a
General Comment on Article 19, the United Nations Human Rights
Committee stated, “[i]t is the interplay between the principle of freedom of
expression and such limitations and restrictions which determines the
actual scope of the individual’s right.”11 Article 20 of the ICCPR provides:
“1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of
national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.”12 The
jurisprudence of the Human Rights Committee in Article 19 of the ICCPR
affirms the duty to restrict freedom of expression for the protection of other
rights.13

8. Universal Declaration of Human Rights, G.A. Res. 217A, art. 19, U.N. Doc. A/810,
(Dec. 10, 1948) (emphasis added).

9. Id. art. 29.

10. International Covenant on Civil and Political Rights art. 19, Dec. 16, 1966, 999
U.N.T.S. 171, 6 I.L.M. 368 [hereinafter ICCPR].

11. U.N. Human Rights Committee, General Comment 10, ¶ 3, U.N. Doc. HRI/GEN/
1/Rev.1 at 11 (1994).

12. ICCPR, supra note 10, art. 20.

13. See Ross v. Canada, U.N. Human Rights Committee, Communication No. 736/1997,
U.N. Doc. CCPR/C/70/D/736/1997 (2000) (upholding the disciplinary action taken
against a school teacher in Canada for statements he made that were found to have
“denigrated the faith and beliefs of Jews and called upon true Christians to not merely
question the validity of Jewish beliefs and teachings but to hold those of the Jewish
faith and ancestry in contempt as undermining freedom, democracy and Christian

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The International Convention on the Elimination of All Forms of
Racial Discrimination requires States Parties to:

declare as 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.14

Article 4(b) of ICERD further requires the prohibition of
“organizations, and also organized and all other propaganda activities,
which promote and incite racial discrimination, and shall recognize
participation in such organizations or activities as an offence punishable by
law.”15

A United Nations General Assembly Resolution adopted in 1946
declares that freedom of information, a fundamental human right, “requires
as an indispensable element the willingness and capacity to employ its
privileges without abuse. It requires as a basic discipline the moral
obligation to see the facts without prejudice and to spread knowledge
without malicious intent.”16

At the regional level, the European Convention on Human Rights has
given rise to extensive jurisprudence on the proper balancing of the right to
freedom of expression, guaranteed by Article 10(1) of the Convention and
the right to restrict such freedom “in the interests of national security” and
“for the protection of the reputation or rights of others,” inter alia pursuant
to Article 10(2) of the Convention.17 The approach to this balancing test,
much like the one used for the ICCPR, reviews: (i) whether the restrictions
are prescribed by law; (ii) whether their aim is legitimate; and (iii) whether
they can be considered necessary in a democratic society, taken to imply
the existence of a “pressing social need” and an intervention “proportionate
to the legitimate aims pursued.”18

beliefs and values.” In its views, the Human Rights Committee noted the finding of
the Canadian Supreme Court that “it was reasonable to anticipate that there was a
causal link between the expressions of the author and the poisoned atmosphere.”)

14. International Convention on the Elimination of All Forms of Racial Discrimination,
G.A. Res. 2106 (XX), Annex art. 4(a), U.N. GAOR, 20th Sess., Supp. No. 14 at 47,
U.N. Doc. A/6014 (Dec. 21, 1965).

15. Id. art. 4(b).

16. G.A. Res. 59 (I), at 95, U.N. Doc A/64 (Dec. 14, 1946).

17. Council of Europe, Convention for the Protection of Human Rights and Fundamental
Freedoms art. 10, Nov. 4, 1950, 213 U.N.T.S. 222.

18. Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 21 ¶¶ 34-

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B. Principles on Incitement to Discrimination and Violence

ICTR case law to date has applied the central principles that emerge
from international jurisprudence on incitement to discrimination and
violence that serve as a useful guide on the factors to be considered in
defining incendiary expressions. These factors are purpose, content, context
and speaker-subject relationship.

1. Purpose

The intent or purpose of the communication is important to
distinguish material of a bona fide nature such as historical research, the
dissemination of news and information, political analysis, fair comment,
and the public accountability of government authorities. The actual
language used in the publication is an indicator of intent. It may indicate
whether the intent is, for instance, advocacy of ethnic consciousness
regarding the inequitable distribution of privilege or ethnic hatred against
an ethnic group, consistently portrayed as the enemy.

2. Content

The sensitivity of the Court to volatile language goes to the
determination of intent to ascertain whether the text is merely offensive or
disturbing or has language intended to inflame or incite to violence. The
tone is also an indicator. It is a question of evidence and judicial
determination of the actual intent of the expression taking the context into
account.

3. Context

In determining whether communication represents intent to cause
genocide and thereby constitutes incitement, the ICTR has considered it
significant that genocide in fact occurred. That the media intended to have
this effect is evidenced in part by the fact that it did have the effect. The
jurisprudence on incitement highlights the importance of taking context
into account when considering the potential impact of expression. A
statement made in a volatile situation may be likely to exacerbate an
already explosive situation.

The ICTR jurisprudence provides the first direct precedent for the

34, available at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/

HUDOC+database/. See also Zana v. Turkey, judgment of 25 November 1997,
Reports 1997-VII, pp. 11-12, ¶¶ 47-51, available at http://www.echr.coe.int/ECHR/

EN/Header/Case-Law/HUDOC/HUDOC+database/; Incal v. Turkey, judgment of 9
June 1998, Reports 1998-IV, pp. 16-17, ¶¶ 41-43, available at
http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/.

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interpretation of direct and public incitement to genocide. In the case of
Prosecutor v. Akayesu, the Tribunal recognized the need to interpret the
term “direct” in the context of Rwandan culture and language, noting as
follows:

[T]he Chamber is of the opinion that the direct element of
incitement should be viewed in the light of its cultural and
linguistic content. Indeed a particular speech may be
perceived as “direct” in one country, and not so in another,
depending on the audience. The Chamber further recalls that
incitement may be direct, and nonetheless implicit. The
Chamber will therefore consider on a case-by-case basis
whether, in light of the culture of Rwanda and the specific
circumstances of the instant case, acts of incitement can be
viewed as direct or not, by focusing mainly on the issue of
whether the persons for whom the message was intended
immediately grasped the implication thereof.19

4. Relationship Between the Speaker and the Subject:

In the European Court of Human Rights case Jersild v. Denmark, the
comments of the interviewer distancing himself from the racist remarks
made by his subject were a critical factor for the court in determining that
the purpose of the television program was the dissemination of news rather
than propagation of racist views.20 The ICTR has identified critical distance
as a key factor in evaluating the purpose of the publication. In cases where
the media disseminate views that constitute ethnic hatred and calls to
violence for informative or educational purposes, a clear distancing from
these is necessary to avoid conveying an endorsement of the message and
in fact to convey a counter message to ensure that no harm results from the
publication. The positioning of the media with regard to the message
indicates the real intent of the message, and to some degree the real
message itself.

CONCLUSION

One significant aspect of the ICTR’s legacy is its rich and
precedential jurisprudence on incitement to genocide and its careful
attention to attaining a delicate balance between freedom of speech and
incitement to criminal activity. Fears of impeding speech need not stand in
the way of the prevention of violence. The power of free speech to create

19. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, ¶¶ 557-58 (Sept. 2, 1998).

20. See Jersild, judgment, Series A no. 298, p. 21, §§ 34-35, available at
http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/.

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and destroy fundamental human values comes with great responsibility.
Those who exercise such powers are accountable for its consequences.