Hate speech and persecution: a contextual approach.

• Author: Gordon, Gregory S.
• Position: III. Reconciling the Split in Treating Speech and Persecution through V. Conclusion, with footnotes, p. 340-373

3. RECONCILING THE SPLIT IN TREATING SPEECH AND PERSECUTION

   1. Unresolved Issues

      By the final sentence of the majority opinion in the Media Case appeals judgment, the relationship between speech and CAH-persecution remained a mystery on certain levels. Some issues had been clarified. The Appeals Chamber adopted the Kupreskic formulation of persecution as comprising "an act or omission which discriminates in fact and which: [(1)] denies or infringes upon a fundamental right laid down in international law or treaty law (the actus reus); and [(2)] was carried out deliberately with the intent to discriminate on one of the enumerated grounds, i.e., race, religion, or politics (the mens rea)." (205) In line with the ICTY decisions as well, the Media Case Appeals Chamber found that not every discriminatory act, in itself, can give rise to the crime of persecution. (206) More specifically, any constitutive acts of persecution, whether considered in isolation or in conjunction with other acts, must be tantamount in gravity to the other crimes enumerated in Article 3 of the ICTR Statute (equivalent to Article 5 of the ICTY Statute). (207) Nevertheless, the underlying persecutory acts need not rise to the level of crimes in international law. (208)

      Moreover, with respect to speech in particular, the Appeals Chamber found that "hate speech targeting a population on the basis of ethnicity, or any other discriminatory ground, violates the right to the respect for dignity of the targeted group as human beings, and therefore constitutes 'actual discrimination."' (209) The Appeals Chamber also ruled that speech inciting to violence against a population on the enumerated discriminatory grounds violates the right to security of members of the targeted group. As a result, this also constitutes actual discrimination. (210) However, the Appeals Chamber stated that it was "not satisfied" that "hate speech alone can amount to a violation of the rights to life, freedom, and physical integrity of the human being." (211) So other persons need to intervene before those such violations can occur. Put another way, a speech cannot, in itself, "directly kill members of a group, imprison or physically injure them." (212) This seems somewhat of a truism--speech qua speech does not result in direct physical consequences to a listener.

      Nevertheless, while speech in itself does not have these types of consequences, it may result in violations to the rights of dignity or security. (213) At perhaps the most crucial juncture of the judgment's reasoning, the Appeals Chamber punted. It refused to opine whether such hate speech violations are as serious as the other enumerated CAH. In other words, it did not decide whether "mere hate speeches not inciting violence against members of a group are of a level of gravity equivalent to that for other crimes against humanity." (214) Still, the Appeals Chamber provided reason to believe such speeches, in the proper context, could be deemed equally grave:

      [I]t is not necessary that every individual act underlying the crime of persecution should be of a gravity corresponding to other crimes against humanity: underlying acts of persecution can be considered together. It is the cumulative effect of all the underlying acts of the crime of persecution which must reach a level of gravity equivalent to that for other crimes against humanity. Furthermore, the context in which these underlying acts take place is particularly important for the purpose of assessing their gravity. (215) Beyond the explicitly unresolved question of whether hate speeches not inciting violence are of a level of gravity equivalent to the other CAH, additional questions remain. What exactly is "hate speech"? What does "incite" mean? The next subpart will grapple with those questions.

   2. The Spectrum of Speech at Issue

      The judicial opinions dealing with speech and persecution tend to bifurcate speech into two broad classifications: (1) hate speech; and (2) speech that incites violence. (216) To the extent the distinction is significant, breaking down the type of speech into more meaningful analytical categories is called for. Is it even proper to have two general but distinct groupings? Or might there be a spectrum of speech wherein, depending on other contextual factors, various points along the spectrum might determine persecution liability? Given the broad range of persecutory speech, the latter approach seems preferable. As one commentator has noted:

      [A] wide definition of hate speech would include group libel, or an attack on the dignity or reputation of a given group or individual. This would cover speech that is considered offensive regardless of whether it would lead to harmful results. A narrower definition of hate speech, however, would limit speech "that is intended to incite hatred or violence" against certain groups or individuals. (217) All relevant speech for purposes of this analysis ought to be considered hate speech. In that sense, incitement would only constitute a subcategory of hate speech along this spectrum, not a separate phenomenon altogether. (218) In that case, what, precisely, would be all of the major points along such a spectrum?

      On one end, one would find the mildest forms of hate speech--general statements casting aspersions on a group. (219) This could be through the republication of racial, ethnic, or religious stereotypes. It could, for example, consist of group libel, which entails attacking or defaming a group that suffers from social prejudice and creating a general climate more receptive to animosity toward and violence against the group. (220) These are general statements not necessarily directed at any person in particular. Such statements may include milder forms of dehumanizing the victim group through techniques of verminization (equating the group with parasitic, pestilent subhuman creatures such as lice or locusts), pathologization (analogizing the group with disease), and demonization (ascribing to the group satanic or other comparably evil qualities). (221)

      Moving further along toward the other end of the spectrum, statements voiced directly at the victims can be categorized as "harassment." (222) Such statements would be addressed to the collective group (e.g., "You do not belong here," or, "You are parasites") or to particular individuals (e.g., "You filthy residents of the Biryogo are making the rest of society dirty and disease-infested. You are destroying our country"). (223)

      The next point in this direction along the spectrum, incitement, entails advocacy directed toward third persons. (224) Such messages are designed to provoke action vis-a-vis the victim group. (225) This kind of incitement bifurcates into two forms: (1) incitement toward nonviolent action and (2) incitement toward violent action. (226) Regarding the former, one can discern three general, relevant nonviolence categories: (1) incitement to hatred, (2) incitement to discrimination, and (3) incitement to persecution. (227)

      Incitement to hatred urges the majority group to develop general feelings of animosity toward the victim group. (228) It is similar to group libel but takes a more active tone in encouraging the majority group to despise the minority. (229) For example, the Rwandan pop singer Simon Bikindi's pre-Rwandan genocide song Njyewe Nanga Abahutu ("I Hate the Hutu") actively encouraged extremist Hutus to develop feelings of contempt for moderate Hutus who were supporting Tutsis in the period leading up to the genocide (both moderate Hutus and Tutsis were victim groups during this time). (230) Incitement to discrimination urges the majority group to mistreat the victim group in particular nonviolent ways. (231) It could be a call to the majority group to refuse medical treatment or service in restaurants or to discourage marriage with members of the victim group. For example, a Nazi pamphlet distributed to German teenagers warned them not to "mix" with Jewish people or marry them for fear of race "defilement." (232)

      Incitement to persecution is incitement to discrimination on a broader and more systematic scale. (233) This is advocacy to exclude the victim group from participation in society and enjoyment of civil rights in a comprehensive way. (234) In pre-genocide Rwanda, for example, Hassan Ngeze published the infamous Ten Commandments of the Hutu in a 1990 issue of Kangura. One commentator has described this document as an appeal to "Hutus to separate themselves from the Tutsis." (235) In fact, it was a call for comprehensive exclusion of Tutsis from society: (1) Hutu males must not have close personal or work relations with Tutsi women; (2) Hutu women are superior to Tutsi women; (3) Hutu women must fraternize only with Hutu men; (4) Tutsis are dishonest and no Hutu should conduct business with them; (5) all high-level positions in society should be occupied by Hutus only; (6) the education sector should be majority Hutu; (7) the military must be exclusively Hutu; (8) The Hutu should stop having mercy on the Tutsi; (9) all Hutus must have unity and solidarity; and (10) the ideology of the 1959 and 1961 revolution (when many Tutsis were disenfranchised, forced to leave Rwanda, or massacred) must be taught to Hutu at all levels. (236)

      The other major form of incitement is to violence. There are two varieties--explicit and non-explicit. (237) Since incitement to violence is often effectuated via code, non-explicit calls are quite common. (238) William Schabas has observed that those who incite to mass atrocity "speak in euphemisms." (239) Such non-explicit methods can be myriad in form and include: (1) predictions of destruction (in the Media Case Trial Chamber judgment, for instance, certain RTLM emissions that predicted liquidation of the Tutsis were among those broadcasts deemed to constitute incitement); (240) (2) so-called "accusation in a mirror" (which consists of imputing to the victim the...