assignment 1 - minorities and vulnerability article

7/31/2019 Assignment 1 - Minorities and Vulnerability Article

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International Journal on Minority and Group Rights 17 (2010) 423446brill.nl/ijgr

Minorities and Hatred: Protections and Implications

Nazila Ghanea*

Lecturer in International Human Rights Law, University of Oxford, UK

AbstractTe international concern with minorities has benefitted from a range of rationales and gonethrough a number of permutations over recent decades. Within these are included a wide spectrumof objectives from concern with their very obliteration covered under genocide instruments to softlaw instruments concerned with their positive flourishing. Tis article will address just one aspectof those concerns those protecting minorities from hate speech.

Keywordsminorities; vulnerability; hate speech; freedom of expression; Articles 19 and 20 ICCPR

1. Minorities and Vulnerability

Minority rights are explicitly concerned with the protection of collective aspects

of individual rights, possibly also with the protection of groupsper se.1 Minorityrights provisions build on the position that equal treatment can prove discrimina-toryin effectfor vulnerable minorities. As the United Nations (UN) independentexpert on minority issues has observed,

[t]he opportunity to participate fully and effectively in all aspects of society, while preservinggroup identity, is essential to true equality and may require positive steps on the part of gov-

ernment. Minority rights [] are about recognizing that, owing to their minority status and

*) Dr. Nazila Ghanea is the Editor-in-Chief of the international journal Religion and Human Rights.She was previously Senior Lecturer in International Law and Human Rights at the University ofLondon. Her publications include nine books; articles in the International and Comparative LawQuarterly, Human Rights Quarterly, International Affairs; pieces with the UK Economic and SocialResearch Council, Minority Rights Group International; publications with the UN addressing

Articles 19 and 20 of the ICCPR, available at (last accessed June 2009), and Ethnic and Religious Minorities in the Islamic Republic of

Iran, UN Doc. E/CN.4/Sub.2/AC.5/2003/WP.8, available at (last accessed June 2009). Her publications span minority rights,freedom of religion or belief, womens rights, and human rights in the Middle East. Email: [email protected]) For a discussion see P Jones Human Rights Group Rights and Peoples Rights 21 Human
http://www2.ohchr.org/english/issues/opinion/articles-1920_iccprhttp://www.ingentaconnect.com/content/external-references?article=0275-0392(1999)21L.80[aid=8651897]http://www.ingentaconnect.com/content/external-references?article=0275-0392(1999)21L.80[aid=8651897]http://www2.ohchr.org/english/issues/opinion/articles-1920_iccprhttp://www2.ohchr.org/english/issues/opinion/articles-1920_iccprhttp://brill.nl/ijgrhttp://www.ingentaconnect.com/content/external-references?article=0275-0392(1999)21L.80[aid=8651897]


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424 N. Ghanea / International Journal on Minority and Group Rights 17 (2010) 423446

distinct identity, some groups are disadvantaged and are at times targeted, and that these com-munities need special protection and empowerment.2

Minority rights as special rights allow members of minority communities to start

off on a platform of equality with majorities. Minority rights are to be enjoyed inaddition to existing rights, as special rights that accrue to persons belonging tominorities.

Whilst there is no internationally agreed definition of minorities containedin international legal provisions, reference to minorities is routinely prefaced bythe designations ethnic, religious or linguistic. Tere are also definitions that aca-demic literature and soft law norms have given credence to over time. Tese

include that by Capotorti in his 1977 UN Sub-Commission study. He held thata minority is

[a] group, numerically inferior to the rest of the population of a State, in a non-dominantposition, whose members being nationals of the State possess ethnic, religious or linguis-tic characteristics differing from those of the rest of the population and show, if only implic-itly, a sense of solidarity, directed towards preserving their culture, traditions, religion orlanguage.3

Despite its weaknesses, this can serve as our definition in this article.4A number of international instruments uphold minority rights, notably

Article 27 of the International Covenant on Civil and Political Rights (ICCPR).5Article 27 is further elaborated in the UN Human Rights Committees GeneralComment 23 of 1994 and the 1992 UN Declaration on the Rights of Persons

2) G. McDougall, Specific Groups and Individuals: Minorities, Report of the Independent Expert onMinority Issues, UN Doc. E/CN.4/2006/74, 6 January 2006.3) UN Doc. E/CN.4/Sub.2/384/Add.1-7, Francesco Capotorti, Study on the Rights of Personsbelonging to Ethnic, Religious and Linguistic Minorities, published by the UN in 1991, SalesNo. E.78. XIV.1.4) Its main weakness is the limitation of the concept of minority rights to nationals of the Statealone. In contrast, the Human Rights Committees General Comment 23 on Article 27 of theICCPR notes: Te terms used in article 27 indicate that the persons designed to be protected arethose who belong to a group and who share in common a culture, a religion and/or a language.

Tose terms also indicate that the individuals designed to be protected need not be citizens of theState party. A State party may not, therefore, restrict the rights under article 27 to its citizensalone (para. 5.1). Tis is further and more generally elaborated in General Comment 31 on theTe Nature of the General Legal Obligation Imposed on States Parties to the Covenant where it isstated that the enjoyment of Covenant rights is not limited to citizens of States Parties but mustalso be available to all individuals, regardless of nationality or statelessness, such as asylum seekers,refugees, migrant workers and other persons, who may find themselves in the territory or subjectto the jurisdiction of the State Party (UN Doc. CCPR/C/21/Rev.1/Add.13, General Comment31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted26 May 2004, para. 10).5) Article 27, International Covenant on Civil and Political Rights, GA res. 2200, UN GAOR, 21stSess., Supp. No. 16, at 52, UN Doc. A/6316 (1966).


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N. Ghanea / International Journal on Minority and Group Rights 17 (2010) 423446 425

6) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and LinguisticMinorities, GA res. 47/135 (18 December 1992).7) As decided in the Human Rights Council, resolution A/HRC/RES/6/15, decision made by the

UN Human Rights Council dated 28 September 2007.8) For example seeGeneral Comment 23 on Article 27 of the ICCPR, para. 6.1.9) Article 4 of ICERD states:

States Parties condemn all propaganda and all organizations which are based on ideas or theo-ries of superiority of one race or group of persons of one colour or ethnic origin, or whichattempt to justify or promote racial hatred and discrimination in any form, and undertake toadopt immediate and positive measures designed to eradicate all incitement to, or acts of, suchdiscrimination and, to this end, with due regard to the principles embodied in the UniversalDeclaration of Human Rights and the rights expressly set forth in article 5 of this Convention,inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial supe-riority or hatred, incitement to racial discrimination, as well as all acts of violence or incite-ment to such acts against any race or group of persons of another colour or ethnic origin, andalso the provision of any assistance to racist activities, including the financing thereof;(b) Shall declare illegal and prohibit organizations, and also organized and all other propa-ganda activities, which promote and incite racial discrimination, and shall recognize participa-tion in such organizations or activities as an offence punishable by law;(c) Shall not permit public authorities or public institutions, national or local, to promote orincite racial discrimination.

10) It should be noted, however, that Article 1s expansive definition of racial discrimination maywell include most manifestations of national and religious discrimination too, as it recognises that

Belonging to National or Ethnic, Religious and Linguistic Minorities (1992Declaration).6 Minority rights received UN attention in the UN Sub-Commission

Working Group on Minorities from 1995 to 2006, and from 2008 receives suchin the annual, two day Forum on Minority Issues.7

From all of these instruments and mechanisms, it is clear that it is the numeri-cal andactual vulnerability of minorities that serves as the grounds for justifyingtheir protection. Since this also makes minorities vulnerable to targeting in hatespeech, they require special consideration in relation to the duty imposed onState parties within Article 20 of the ICCPR. Tis Article is particularly impor-tant because none of the other aforementioned standards though referring topositive measures of protection for minorities both in relation to action by

States and other parties8 provide specifically for their protection from hatespeech.

Te purpose of this article is, therefore, to examine the relevance of Article 20to minorities. Te article will not consider other instruments concerned withhate speech and minorities most notably Article 4 of the International Con-vention on the Elimination of All Forms of Racial Discrimination (ICERD)9 inorder to focus more widely on minorities as a whole and to allow a suffi cient

focus within this article. Suffi ce it to say that the limitation of ICERDs Article 4is its explicit concern with race, colour and ethnicity,10 in contrast with the


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the term racial discrimination shall mean any distinction, exclusion, restriction or preferencebased on race, colour, descent, or national or ethnic origin which has the purpose or effect of nul-lifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rightsand fundamental freedoms in the political, economic, social, cultural or any other field of publiclife. SeeICERDs Article 1(1).11) Article 20(2), International Covenant on Civil and Political Rights, GA res. 2200, UN GAOR,21st Sess., Supp. No. 16, at 52, UN Doc A/6316 (1966).12) D. McGoldrick and . ODonnell, Hate-speech laws: consistency with national and interna-tional human rights law, 18 Legal Studies(1998) p. 454.13) Ibid., p. 455.14) International Covenant on Civil and Political Rights, GA res. 2200, UN GAOR, 21st Sess.,Supp. No. 16, at 52, UN Doc. A/6316 (1966).

broader scope of Article 20 (ICCPR) which addresses national, racial orreligious11 hatred, discrimination, hostility or violence. It should also be notedthat the 1992 Declarations reference to linguistic minorities is, appropriately,missing in the context of Article 20. Te whipping up of linguistic hatred, alonerather than in conjunction with the other two grounds of race or religion, seem-ingly posed too remote a possibility for consideration.

2. Freedom of Expression and Prohibition of Prohibition of Hate: Articles19 and 20 of the ICCPR

Both Article 19 and Article 20 of the ICCPR bear testament to the fact thatalthough freedom of expression is one of the most widely accepted rights,12 it isnot an absolute right and there are prohibitions and limitations attached to it.Indeed, the related jurisprudence has outlined the complex jurisprudential

weighting of rights, interests and values.13

2.1. Article 19

Article 19 of the ICCPR states:

1. Everyone shall have the right to hold opinions without interference.2. Everyone shall have the right to freedom of expression; this right shall include freedom toseek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally,in writing or in print, in the form of art, or through any other media of his choice.3. Te exercise of the rights provided for in paragraph 2 of this article carries with it specialduties and responsibilities. It may therefore be subject to certain restrictions, but these shallonly be such as are provided by law and are necessary:(a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order (ordre public), or of public healthor morals.14

Te right to hold opinions without interference isan absolute right, as obser-ved by the Human Rights Committee. Article 19(1) permits no exception or


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15) General Comment 10 on Article 19 of the ICCPR, Freedom of Expression, adopted at the 19thSession on 29 June 1983, para. 1.16) General Comment 10 on Article 19 of the ICCPR, para. 4. Tis has also been confirmed sincethis General Comment, for example in the following jurisprudence from the Human RightsCommittee: Faurisson v. France (550/1993), ICCPR, A/52/40 vol. II (8 November 1996) 84(CCPR/C/58/D/550/1993), para. 9.6, and Rossv. Canada (736/1997), ICCPR, A/56/40 vol. II(18 October 2000) 69 (CCPR/C/70/D/736/1997), para. 6.11.17) General Comment 10 on Article 19 of the ICCPR, para. 4.18) International Covenant on Civil and Political Rights, GA res. 2200, UN GAOR, 21st Sess.,Supp. No. 16, at 52, UN Doc. A/6316 (1966).19) General Comment 11 on Article 20 of the ICCPR, Prohibition of propaganda for war and incit-ing national, racial or religious hatred, adopted at the 19th Session on 29 July 1983, para. 1.

restriction;15 it is only in its expression that special duties and responsibilities,and hence possible restrictions, may apply. Tese special duties and responsibili-ties are addressed in Article 19(3) and relate to the interests of other persons orto those of the community as a whole.16 Te note of caution is that the Stateparty may not put in jeopardy the right itself 17 in its application of these restric-tions. Any restrictions must be provided for by law, and they must be imposed forone of the following purposes:

1. respect of the rights or reputations of others (Article 19(3)(a)); or theprotection of:

2. national security,

3. public order (ordre public),4. public health, or5. morals (Article 19(3)(b)).

In addition, they should be justified by the State party concerned for one of thosepurposes that is that they should be necessary to achieve that legitimate purposeor aim. Te restriction imposed on freedom of expression must therefore be pro-

portional to the value which the restriction serves to protect.

2.2. Article 20

Article 20 of the ICCPR states:

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incite-ment to discrimination, hostility or violence shall be prohibited by law.18

Since 20(1) does not relate to minorities as such, the focus here will be on 20(2).Article 20 places an obligation on States parties to adopt the necessary legislativemeasures prohibiting the actions referred to therein;19 by showing that they havebeen prohibited in law orshowing that appropriate efforts intended or made


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ground See also General Comment 18 on Non-discrimination, adopted at the 37th Session on10 November 1989, para. 1. Article 26 offers an independent right and is to be distinguished from

Article 2 of the ICCPR which is the more limited non-discrimination provision that needs to beread in conjunction with a specific right guaranteed elsewhere in the ICCPR, i.e., it is a parasitic onother ICCPR rights. Article 26 can be violated independently, therefore, and Article 2 cannot.25) General Comment 18 on Non-discrimination, para. 12.26) McGoldrick and ODonnell, supra note 12, pp. 471472.27)

Nowak, supra note 22, pp. 604605.28) General Comment 18 on Non-discrimination, para. 13.29) Ibid., para. 8.30) Ibid., para. 10.31) Ibid., para. 10.32) R. Post, Religion and Freedom of Speech: Portraits of Muhammad, 14:1 Constellations(2007)p. 83.33) General Comment 11, supra note 19, para. 2.34) Much has been written about hostility being of a lower nature than violence, hence its redun-dancy in Article 20(2). Te author will not enter into this discussion here.35) B. Clarke, Freedom of Speech and Criticism of Religion: What are the Limits?, 14:2MurdochUniversity E Law Journal(2007) p. 104.

is upheld as an autonomous right.25 Article 26 offers a substantive equalityguarantee, rather than a guarantee limited only to the rights of the ICCPR.26Nowak makes what Article 26 adds to Article 2 manifestly clear in the following:Te Covenant contains no provision granting a right to sit on a park bench. But

when a State party enacts a law forbidding Jews or blacks from sitting on publicpark benches, then this law violates Art. 26.27 However, not every differentia-tion of treatment will constitute discrimination, if the criteria for such differen-tiation are reasonable and objective and if the aim is to achieve a purpose whichis legitimate under the Covenant.28 Indeed as already discussed above iden-tical treatment in every instance29 may itself be discriminatory as the principleof equality sometimes requires States parties to take affi rmative action30 and this

constitutes legitimate differentiation.31 Tis suggests that the advocacy ofhatred that incites discrimination that needs to be identified is not concerned

with differentiation alone. Indeed, since discrimination has the lowest thresholdof the tripartite criteria of Article 20, we would be wise to take on Posts sugges-tion in relation to Article 20(2) that states must show that the harm of discrimi-nation cannot be ameliorated by means other than the suppression of protectedspeech.32 So, whilst prohibited by law, a well calibrated measure of responses to

hate speech that incites discrimination needs to be carefully ascertained in orderfor the sanctions adopted at each stage to indeed be appropriate.33

Te question of what will give rise to incitement of hostility and violence,34the second and third of Article 20 tripartite criteria, is yet harder to ascertain.Clarke suggests that [w]here certain parts of the population have previouslyresponded violently to perceived criticism there will be a genuine threat ofriots and violence.35 As one writer has observed regarding racial hatred,
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36) R. A. Kahn, Cross-Burning, Holocaust Denial, and the Development of Hate Speech Law inthe United States and Germany, 83 University of Detroit Mercy Law Review(2006) p. 192.37) Nowak, supra note 22, p. 475.38) S. Farrior, Molding Te Matrix: Te Historical and Teoretical Foundations of InternationalLaw Concerning Hate Speech, 14:1 Berkeley Journal of International Law(1996) p. 8.39) General Comment 11, supra note 19, para. 2.40) Nowak, supra note 22, p. 468.41) Ibid.42) Ibid.

[i]n the area of hate speech regulation, the most serious problems often relate to owning up topast examples of ethnic violence. While all types of hate speech have the power to intimidateminority groups and in the process disrupt society, hate speech that attempts to minimize or

justify past instances of such violence can be extremely disruptive.36

A history of violence and persecution are useful indicators, and it is here againthat minority rights have a bearing. One implication of the terms hostility orviolence is that, as Nowak has argued, Article 20(2) does not require States par-ties to prohibit advocacy of hatred in private that instigates non-violent acts ofracial or religious discrimination.37

2.5. Nature of the Obligation

Farrior holds that Article 20(2) does not declare a right that individuals holdvis--vis the government; instead, it requires governments to prohibit certainbehaviour of private actors vis--vis other private actors.38 Tis author woulddisagree with the latter point, in that it seems to suggest that the government

would not have a role in prohibiting the behaviour of public actors in this regard.Tis is contradicted by the view of the Human Rights Committee itself, in that it

observes that States parties should themselves refrain from any such propagandaor advocacy.39

Article 20 is said to have introduced an alien element in the system of theCovenant in that it does not set forth a specific human rights but merely estab-lishes limitations on other rights40 through a separate provision.41 It departsfrom the limitation grounds within existing rights articles in that it not onlyauthorizes interference with these freedoms but also requires States parties to

provide for corresponding restrictions.42 Tis, however, should be understoodwithin the broader context of the State-centred nature of international humanrights obligations. Whilst the explicit reference in Article 20(2) is to the Stateestablishing prohibitions in law for inter alia the advocacy of hatred that incitesto discrimination that should not distract us from the wider responsibility ofStates parties to prevent discrimination. Put in other terms, the State itselfshould not be deemed a victim of such incitement. Te occurrence of such

advocacy of hate serves as a warning to the State concerned of its overarching


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43) Te General Recommendations of the Committee on the Elimination of Racial Discrimination,alone, are illustrative of the range and scope of efforts required by States to respond effectively toentrenched discrimination. See General Recommendation 27, Discrimination against Roma,adopted at the 57th Session on 16 August 2000 and General Recommendation 29 on Article 1(1)of the Convention (Descent), adopted at the 61st Session on 1 November 2002.44) Tis appears to be a point lost on States who have been propelling forward resolutions on defa-mation at the former Commission on Human Rights, and now the Human Rights Council, since1999.45)

Farrior, supra note 38, p. 4.46) Ibid., p. 5.47) African Charter on Human and Peoples Rights, June 27, 1981, OAU Doc. CAB/LEG/67/3rev. 5, 21 ILM 58 (1982).48) Article 13(5) of the American Convention on Human Rights states: Any propaganda for

war and any advocacy of national, racial, or religious hatred that constitute incitements to lawlessviolence or to any other similar action against any person or group of persons on any groundsincluding those of race, color, religion, language, or national origin shall be considered as offensespunishable by law. American Convention on Human Rights, 22 November 1969, O.A.S..S.No. 36, 9 ILM 99.49) E. F. Defeis, Freedom of Speech and International Norms: A Response to Hate Speech, 29:57Stanford Journal of International Law(1992) p. 112.

role in obliterating such discrimination through multifaceted interventions atdifferent levels.43 It heightens, rather than lessens, its obligations.44

Stating that Article 20 is alien to the ICCPR, however, is an overstatement.Article 5(1) of the ICCPR emphasises that [n]othing in the present Covenantmay be interpreted as implying for any State, group or person any right to engagein any activity or perform any act aimed at the destruction of any of the rightsand freedoms recognized herein or at their limitation to a greater extent than isprovided for in the present Covenant. Since no one may engage in an activityaimed at destroying the rights of others,45 then this clearly provides us with theclearest rationale for the obligations stemming from Article 20. Tis thereforeindicates that [t]he use of the right to freedom of expression, if aimed to destroy

the rights of others, constitutes an abuse of that right and as such may be restrictedby law.46

2.6. Other Instruments

Article 9(2) of the African Charter states that [e]very individual shall have theright to express and disseminate his opinions within the law.47 It is clear that the

phrase within the law covers limitations such as those contained in the ICCPR.Article 13(5) of the American Convention on Human Rights upholdsfreedom ofthought and expression and offers a similar protection of Article 20(2),48 though itscriteria of incitements to lawless violence or to any other similar action offersgreater clarity and is narrower49 regarding the required threshold than the


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50)

Emphasis added.51) Farrior, supra note 38, p. 22, as well as pp. 2526.52) Article 19 of the UDHR states: Everyone has the right to freedom of opinion and expression;this right includes freedom to hold opinions without interference and to seek, receive and impartinformation and ideas through any media and regardless of frontiers. Universal Declaration ofHuman Rights, GA res. 217A(III), UN GAOR, 3rd Sess., UN Doc. A/810 (1948).53) D. Kretzmer, Freedom of Speech and Racism, 8 Cardozo Law Review(1987) pp. 455456.54) Ibid., p. 457.55) S.J. Caitlin, A Proposal for Regulating Hate Speech in the United States: Balancing RightsUnder the International Covenant on Civil and Political Rights, 69:4 Notre Dame Law Review(1994) p. 777.56) Ibid., p. 795.

incitement to discrimination, hostilityorviolence in Article 20(2).50 Indeed,the early drafts of the ICCPR, too, only restricted incitement to violence.51

Te relationship between, and possible tensions arising from, Articles 19 and20 of the ICCPR mirror those in the Universal Declaration of Human Rights(UDHR). Article 19 of the UDHR52 protects freedom of opinion and expression

without stating any limitations, though Article 29(2) the UDHRs general limi-tation clause upholds limitations that are determined by law solely for thepurpose of securing due recognition and respect for the rights and freedoms ofothers and of meeting the just requirements of morality, public order and thegeneral welfare in a democratic society.

3. Hate Speech and the Vulnerability of Minorities

Kretzmer explores three rationales for the restriction of freedom of expression,particularly in relation to racist speech. Te first rationale is that this limits thespread of racist ideas, the second that it protects the feelings of victims and main-tains public peace, and the third and final one is the symbolic importance of

restricting free speech stressing the indignity of living in a society in whichsuch speech is tolerated.53 He finds all three to be problematic and indeed inad-equate. He is particularly scathing regarding the second. He argues:

Suppressing a view because of its offensiveness is unacceptable as a general proposition.Many, if not most, political views are offensive to some. Denying the right to express viewsbecause of their offensiveness would spell the end of democracy.54

Tis, however, is precisely where Caitlin situates the Covenant: Te ICCPR, henotes, considers the victims perspective55 in balancing free speech against thelisteners right to have her inherent human dignity protected from hate speechinjuries.56 Kretzmer seeks to go beyond these arguments to search for a causalrelationship between racist speech and particular harms caused by it the spread


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57) Kretzmer, supra note 53, p. 465.58) Rv. Keegstra, [1990] 3 S.C.R. 697, 13/12/90, at 697 (Can.), para. 1.59) Ibid.60) D. O. Brink, Millian Principles, Freedom of Expression, and Hate Speech, 7 Legal Teory(2001) pp. 138139.

of racial prejudice and the affront to personal dignity in particular. His analysisfinds a suffi cient enough relationship between racial prejudice and racial discrimi-nation and violence to justify not disregarding it.57 As the Supreme Court ofCanada put it in the

Rv.

Keegstracase,

[t]here is obviously a rational connection between the criminal prohibition of hate propa-ganda and the objective of protecting target group members and of fostering harmonioussocial relations in a community dedicated to equality and multiculturalism. Section 319(2)[where the Canadian Criminal Code places a limit on freedom of expression] serves to illus-trate to the public the severe reprobation with which society holds messages of hate directedtowards racial and religious groups. It makes that kind of expression less attractive and hencedecreases acceptance of its content. Section 319(2) is also a means by which the values benefi-

cial to a free and democratic society in particular, the value of equality and the worth anddignity of each human person can be publicized.58

However, the Court does go on to emphasise the importance of clear definitionallimits in order to ensure that only the harm at which the prohibition is targetedis in fact attacked. Te mens rea standard of wilfully, its public nature, thefocus on an identifiable group and requirements of the severity of hatred i.e.

only the most severe and deeply felt form of opprobrium serve to ensure thatit is a narrowly confined offence59 that is only occasionally resorted to.Brink notes:

Tere is much speech that is discriminatory but does not count as hate speech. It reflects andencourages bias and harmful stereotyping, but it does not employ epithets in order to stigma-tize and insult vilify and wound. hate speech is worse than discriminatory speech hate speechs use of traditional epithets or symbols of derision to vilify on the basis of group

membership expresses contempt for its targets and seems more likely to cause emotionaldistress and to provoke visceral, rather than articulate, response.60

According to this position, then, in applying Article 20(2) it is all the moreimportant to first assess the advocacy of hatred before considering its incitementof discrimination.

Brink further argues:

Hateful fighting words are not simply provocative; invoking historical patterns of system-atic discrimination and often violence, they brand their targets as inferior and unworthyof concern and respect, and often produce reasonable fears for the targets privacy or safety. Inthese ways, hateful fighting words are especially traumatic and divisive. As a result, hateful


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61) Ibid., p. 152.62) Nowak, supra note 22, p. 468.63) Ibid., p. 472.64) Ibid., p. 472.65) Ibid., p. 472.66) Defeis, supra note 49, p. 130.

fighting words tend to silence their targets and to undermine the culture of mutual respect andtolerance necessary for a proper representation and fair assessment of alternative points of viewin ways that other fighting words dont.61

Te risks arising from hate speech therefore are not offense or insult, but thefact that they lead to reasonable expectations of fear. Nowak too argues that

Article 20 is

primarily conceived of as a special State obligation to take preventive measures at the horizon-tal level to enforce the rights to life (Art. 6) and equality (Art. 26). Tese two rights occupysuch a central status in the system of the Covenant that it was decided to combat the roots ofthe main causes for their systematic violation (wars, as well as racial, national and religious

discrimination) by way of preventive prohibitions in the area of formation of publicopinion.62

Tis point is not explicit from a reading of General Comments 10 and 11 respec-tively, and it is interesting to note that Nowak does not highlight the relevance of

Article 27. However, he does do so implicitly, when discussing Article 20s verypurpose. Nowak infers that due to the requirement of the Vienna Convention

on the Law of reaties that all treaties shall be interpreted in good faith andaccording to their ordinary meaning, object and purpose Article 20 should onlybe understood as a response to the incitement to war and racial hatred spurredby the propaganda machinery of the Tird Reich.63 He goes on to explain

why the travaux prparatiores make it clear that the object and purpose ofthis Article was expressly directed at propaganda for fascist and Nazi views64 hence it should only be taken to forbid propagandistic incitement roughly com-parable to that practiced in the Tird Reich.65 Defeis also notes that the deepconcern and commitment for equality and non-discrimination reflect the factthat the international conventions were drafted with the recent human rightsabuses perpetrated in the name of racial, religious, or ethnic superiority firmly inmind.66

In their assessment of hate speech laws focusing on racism, McGoldrick andODonnell outline 10 guidelines ascertained from the examination of national,European and international jurisprudence related to this matter. Tey concur

with other experts in emphasising the context-specific nature of the assessment ofthe applicability of hate speech protections, to be judged in their context and in


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67) McGoldrick and ODonnell, supra note 12, guideline f, p. 485.68) Ibid., guideline j, p. 485.69) Caitlin, supra note 55, p. 810.70) Ibid., p. 811.

the light of an assessment of their true nature, for example, when historical state-ments are accompanied by racist and anti-Semitic allegations of fabrication,myth-making and extortion.67 Again in relation to assessing the necessity of suchrestrictions, they suggest the relevance of the historical experience of the stateconcerned as well as current levels of racism and anti-Semitism.68 Catlin sug-gests that once it has been established that hate speech is involved, then five fur-ther factors need to be taken into consideration in order to define proscribablehate speech.69 One of these is how closely the speech was directed at a specificperson or group, at the time of its utterance, and another the response actuallyinduced in the listener.70 Both of these may be aggravated with the minoritystatus of the victim, particularly in the context of a pattern of persecution.

Te relevance of minorities to the question of hate speech and particularly toArticles 19 and 20 of the ICCPR therefore stems from the fact of the particu-larly high threshold called upon by these Articles. Tis threshold will rarely bereached in the absence of a pattern, if not long history, of gross human rightsviolations against a particular minority group.

3.1. A Note of Caution

Despite the need to be especially aware of the protective cover being extended tominorities through Article 20 of the ICCPR, there is the need for caution. Tereshould be serious wariness about the risk of abuse, especially by those waiting atthe margins to encourage the instrumentalisation of violence. We should be cog-nisant of the ease with which government, minority or other actors could stimu-late violence purely in order to restrict freedom of expression, allegedly in order

to protect minorities. Here we need to be cautious of not losing the full contextof advocacy of hatred as well as the incitement to hostility or violence. It isnot the violence that should be indicative of the gravity of the speech, the thresh-old of advocacy of hate should be determined independently of the fact of theincitement of violence.

In cases where it is expression by minorities that is to be constrained, assess-ments should also be carried out in the light of obligations under Articles 26 and27 of the ICCPR the State party would need to ensure that this does not have

the indirect effect of discriminating against minorities or minority positions.Te reason for this distinction between Articles 19 and 20 is that Article 19(3)

(b) allows for a limitation on freedom of expression for the protection of nationalsecurity or public order. Article 20(2)s test, however, is hatred that constitutes


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71) McGoldrick and ODonnell, supra note 12, guideline g, p. 485.72) Te Canadian Criminal Code, R.S., 1985, c. C-46, available at (last accessed June 2009), 319(1).73) Ibid., 318(4).74) Ibid., 319(1).

incitement to [inter alia] hostility or violence. Te hatred needs to be estab-lished first, and then prohibited only if it incites violence (or hostility, or dis-crimination) not the other way around. Tis is the order of analysis that isindicated in Article 20. Tere also needs to be an exacting and rational connec-tion drawn between that violence and the group concerned. Care needs to betaken so that neither random nor orchestrated acts of violence, which bear noreasonable relationship with the expression concerned, are taken on board tosway the decision.

But is the protection from hate speech applicable to individuals belonging tominorities or the minority group as a whole - is it a collective right or individualright? Certainly the group context, as shown above, is highly pertinent in the

assessment of hatred that incites towards discrimination; but is it relevant tohostility and violence? McGoldrick and ODonnell uphold this position intheir statement that [r]estrictions on freedom of expression based on the protec-tion of the rights and reputation of others may extend to the protection of thecommunity as a whole and thereby to the groups that make up that community.71In order to assess this question of collective rights further, we need to examine therelevant case law.

4. National Case Law

What nexus does national case law illustrate between the prohibition of hate andminorities? Tis section will provide a very brief overview of case law fromCanada, South Africa, Norway and the US in examining this question.

4.1. Canada

Te Canadian Criminal Code addresses Hate Propaganda in some detail. Tesame section addresses both the advocacy and promotion of genocide as well as

well as the public incitement or wilful promotion of hatred. Te incitement ofhatred needs to have been carried out in any public place,72 against an identi-fiable group defined previously as any section of the public distinguished

by colour, race, religion, ethnic origin or sexual orientation73 and be likely tolead to a breach of the peace.74 Te wilful promotion of hatred should not have
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75) Ibid., 319(2).76) Ibid., 319(3).77) R. v. Buzzanga and Durocher(1979), 49 C.C.C. (2d) 369 (Ont. C.A.).78) R. v. Andrews, [1990] 3 S.C.R. 870, Section III, available at (last accessed June 2009).79) Te Canadian Charter of Rights and Freedoms, available at (last accessed June 2009).80) Irwin toy ltd. v. Quebec (Attorney general), [1989] 1 S.C.R. 927, section VI(b), available at (last accessed June 2009).

just been in private conversation;75 it should be promoting hatred wilfully,against an identifiable group. Both the latter are indictable offenses with a maxi-mum sentence of two years imprisonment. However, the wilful promotion ofhatred is not indictable under four conditions:

(a) if he [the accused] establishes that the statements communicated weretrue;

(b) if, in good faith, the person expressed or attempted to establish by anargument an opinion on a religious subject or an opinion based on a beliefin a religious text;

(c) if the statements were relevant to any subject of public interest, the discus-

sion of which was for the public benefit, and if on reasonable grounds hebelieved them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal,matters producing or tending to produce feelings of hatred toward anidentifiable group in Canada.76

Te test of wilfully has been set out further in Canadian case law in the Buzzanga

case,77

and echoed in Rv.Andrews: this mental element is satisfied only where anaccused either: i) subjectively desires the promotion of hatred against an identifi-able group; or ii) foresees such a consequence as certain or morally certain toresult from the distribution of the material.78

Tis is balanced by Article 2(b) of the Canadian Charter of Rights and Freedomswhich protects freedom of thought, belief, opinion and expression, includingfreedom of the press and other media of communication.79 Te question of

restrictions on freedom of expression were litigated in the Irwin oy Ltd. v. Quebec(1989) case which noted the the principles and values underlying the vigilantprotection of free expression as follows: (1) seeking and attaining the truth is aninherently good activity; (2) participation in social and political decision-makingis to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially toler-ant, indeed welcoming, environment not only for the sake of those who convey ameaning, but also for the sake of those to whom it is conveyed.80
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81) Islamic Unity Convention v. Independent Broadcasting Authority and others(CC36/01) [2002]ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002), para. 31, available at (last accessed June 2009).

82) Ibid., para. 34.83) [1979] E.C.C. 139 (23 September 1978), as cited in Farrior, supra note 38, p. 58.84) Farrior, supra note 38, p. 58.

Te identifiable group requirement clearly positions minorities centre stagein the Criminal Codes concerns, and though its inclusion of sexual orientationmakes the inclusion of sexual minorities clear, there remains contention at theinternational level as to their inclusion.

4.2. South Africa

Te South African Islamic Unity Convention v. Independent Broadcasting Authority(2002) case upheld the need to restrict hate speech. It states:

What is not protected by the Constitution is expression or speech that amounts to advocacy

of hatred that is based on one or other of the listed grounds, namely race, ethnicity, gender orreligion and which amounts to incitement to cause harm. Tere is no doubt that the state hasa particular interest in regulating this type of expression because of the harm it may pose to theconstitutionally mandated objective of building the non-racial and non-sexist society based onhuman dignity and the achievement of equality. Tere is accordingly no bar to the enactmentof legislation that prohibits such expression.81

Te case, however, noted that [n]ot every expression or speech that is likely to

prejudice relations between sections of the population would be propaganda forwar, or incitement of imminent violence or advocacy of hatred that is not onlybased on race, ethnicity, gender or religion, but that also constitutes incitementto cause harm,82 and rejected this lower threshold.

Te distinction between prejudicing relations between sections of the popula-tion (hence groups) and incitement to cause harm (to individuals) is interestingto note.

4.3. Norway

Te question of the threshold of threat and insult to any person or groups ofpersons on the grounds of race, national or ethnic origin was addressed by theNorwegian Supreme Court case Re Morgenavisen.83 Te Court referred to theconsiderable effects of speech before it can be penalised, noted that all groupsmay find themselves attacked, and noted that the effects of speech much be strongand widespread before the limit of the law is transgressed.84

Te equal coverage to both a person and groups of persons, as well as theacceptance that all groups may be attacked, are interesting to note.
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85) R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377; 112 S. Ct. 2538 (1992).86) Catlin, supra note 55, p. 782.87) Ibid., p. 777.88) Ibid., p. 789.89) Ibid., p. 788.90) Defeis, supra note 49, p. 74.91) Brandenburgv. Ohio, 395 US 444 (1969).92) Beauharnaisv. People of the State of Illinois, 343 US 250, 72 S. Ct. 725 (1952).

93) Virginia v. Black, 123 S. Ct. 1536 (2003) (U.S.S.C.).94) Defeis, supra note 49, p. 100.95) Farrior, supra note 38, p. 66.

4.4. United States

US case law on hate speech is highlighted byR.A.V. v. St. Paul85 the US SupremeCourts seminal hate speech case86 where the Supreme Court found that freespeech protection includes the burning of a cross on the lawn of a black family inthe middle of the night.87 Te case has been criticised for its failure to considerthe rights of the victim88 as [h]ate speech impugns the rights and worth of theentire target race, and thereby chills discourse on a broader scale.89 In the wordsof another commentator, [s]peech rights in the United States occupy a preferredposition which to some extent continues to be quasi-absolutist. Tis approachhas failed to take into account the violence and harm to the victim that accompa-

nies hate speech.90 Previous cases, also showing primacy of First Amendmentprotection, have addressed Ku Klux Klan participation in a rally91 and the distri-bution of white supremacist leaflets,92 and later cases have overturned a statutebanning cross burning as unconstitutional.93

From the position of acceptance of acts threatening to both members of minor-ities, as well as the minority group as a whole, there seems to be somemovementin US case law towards recognition of its harm.

5. Regional and International Case Law: ECHR and HRC

5.1. European Convention on Human Rights

In general, European Convention on Human Rights (ECHR) case law indicates

that the Courts tolerance of speech restrictions depends on a myriad factors,including the breadth of the restriction, the public interest involved andproportionality94 and focuses on an analysis of the content of the opinionsexpressed.95 Defeis has observed that whereas the European Court has notdecided directly the issue of whether criminal prosecution for speech promot-ing racial or ethnic hatred violates Article 10, its decisions support the position


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96)

Ibid., p. 103.97) Ibid., p. 104.98) Lingensv.Austria, 103 Eur. Ct. H.R. (Ser. A) (1986).99) Xv.Austria, App. No. 1747/62, 6 Y.B.Eur.Conv. on H.R. 424 (1963).

100) No reference is made to the ICCPR though Te Netherlands had ratified it on 11 December1978.101) Glimmerveen and Habenbeekv. Te Netherlands, App. No. 8348/78, 18 Eur. Commn H.R. 187(1979).102) Ibid.103) Ibid.104) Xv. Federal Republic of Germany, App. No. 9235/81, 29 Eur. Commn H.R. 194 (1982).105) Ibid.106) Ibid.

that such restrictions are permissible and indeed encouraged.96 Te (former)Commissions views are, however, clearer on the matter as it has indicated thatspeech which promotes ethnic hatred is inimicable in a democratic society97 andfound such cases as manifestly unfounded, as will be seen below.

Several cases broadly related to the limits on hate speech. Lingensv.Austria98addressed a journalist who was accused of defamation for publishing two articlescriticising a politician who had supported a Nazi candidate. Te European Courtfound that the restriction of the journalists freedom of expression constituted abreach of his freedom of expression.Xv.Austria99 was addressed by the EuropeanCommission and regarding imprisonment for neo-Nazi activities, the Commis-sion did not object and cited ICERD100 in its decision. In Glimmerveen and

Habenbeekv. Te Netherlands,101 the Commission ruled the case of individualsdistributing leaflets inciting racial discrimination as inadmissible. Here, theCommission noted the relevance of Article 17 of the ECHR (the right inter aliaof any group to destroy any of the protected rights and freedoms) and consideredthat the applicants were essentially seeking to use Article 10 to provide a basisunder the Convention for a right to engage in these activities [i.e. as addressed in

Article 17] which would contribute to the destruction of the rights and free-

doms referred to.102 Te Commission found that the applicants could not byreason of the provisions of Article 17 of the Convention, rely on Article 10 of theConvention.103Xv. Federal Republic of Germany104 dealt with a case where botha civil prosecution for group defamation and a criminal conviction for incitementto hatred were brought against an individual who had displayed pamphlets deny-ing the Holocaust in Germany and referring to it as a Zionist swindle or lie;105the Commission upheld the restrictions on his Article 10 rights. Te Commission

considered the pamphlets to have rightly been considered defamatory of all [J]ews persecuted or killed during the Tird Reich and their surviving relatives.Interestingly, the Commission also stated that [t]he fact that collective protec-tion against defamation is limited to certain groups including [J]ews is based onobjective considerations and does not involve any element of discriminationcontrary to Article 14 of the Convention.106 One case where the Commission


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107) Jersildv. Denmark, 19 Eur. Ct. H.R. (Ser. A) 1 (1994).108) J. R. . et al. v. Canada (104/1981), ICCPR, A/38/40 (6 April 1983) 231.109) Ibid., para. 6.2.110) Ibid.111) Ibid., para. 8(b).112) Rossv. Canada (736/1997), ICCPR, A/56/40 vol. II (18 October 2000) 69.

did find violation of Article 10 as did the Court was that ofJersildv. Denmark.107Despite the cases recognition of the relevance and imperitive of the ICCPRs

Article 20(2), the case centred on the necessity of convicting a journalist who hadaddressed the views of a racist youth group in a documentary.

European case law is, perhaps unsurprisingly, concerned about both the con-tent of hate speech and the protection of the rights and freedoms of others espe-cially historically persecuted communities. Te margin of appreciation recognisedin this regard is very wide.

5.2. ICCPR

An overview of the jurisprudence of the Human Rights Committee related toArticle 20 shows that it is assessed in conjunction with Article 19 in most cases,demonstrating its close nexus with freedom of expression. Tree such cases willbe examined below.

J. R. . and the W.G. partyv. Canada108concerned Mr. ., the founder of thepolitical party W.G., and an alleged violation of Article 19 of the ICCPR. .attempted to promote membership of the party by playing tape-recorded

messages condemning the conspiracy of international Jewry on advertisedtelephone numbers. Canada claimed that there had been no breach of theICCPR (including Article 19) and that in fact the court case preventing . fromfurther distribution of these messages had given effect to article 20(2) of theCovenant109 as his right to communicate racist ideas was not protected by theCovenant and was in fact incompatible with its provisions.110 Te HumanRights Committee concurred that .s messages clearly constitute the advocacy

of racial or religious hatred which Canada has an obligation under article 20 (2)of the Covenant to prohibit.111 Ultimately, however, the communication wasdeclared inadmissible for having failed to exhaust domestic remedies. In this case,therefore, although the applicant made a claim in relation to Article 19, the Stateparty concerned raised the exception of Article 20(2) and the Human RightsCommittee upheld its relevance, and underlined it in fact as an obligation on theState party to do so.

Rossv. Canada112concerned an author who acted as a resource teacher andwho promoted anti-Jewish views in his publications, in the media and in theclassroom. He was dismissed from his post and claimed violation of Articles 18and 19 of the ICCPR. Te State party asserted that his publications fell within


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113) Ibid., para. 6.2.114) Ibid., para. 6.3.115) Article 5(1) of the ICCPR states 1. Nothing in the present Covenant may be interpreted asimplying for any State, group or person any right to engage in any activity or perform any act aimedat the destruction of any of the rights and freedoms recognized herein or at their limitation to agreater extent than is provided for in the present Covenant.116) Rossv. Canada, supra note 112, para. 6.9.117) Ibid., para. 10.6.118) Ibid., para. 11.5.119) Faurisson v. France(550/1993), ICCPR, A/52/40 vol. II (8 November 1996) 84 (CCPR/C/58/D/550/1993).

the scope of Article 20(2).113 Canada made an interesting argument that deservesto be included in full:

Te State party argues that articles 18, 19 and 20 of the Covenant must be interpreted in aconsistent manner, and that the State party therefore cannot be in violation of articles 18 or19 by taking measures to comply with article 20. It is submitted that freedom of religion andexpression under the Covenant must be interpreted as not including the advocacy of national,racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Inthis regard, the State party also invokes article 5, paragraph 1, of the Covenant, and submitsthat to interpret articles 18 and 19 as protecting the dissemination of anti-Semitic speechcloaked as Christianity denies Jews the freedom to exercise their religion, instills fear in Jewsand other religious minorities and degrades the Christian faith.114

Te implications of this argument go beyond the scope of this article, but theoverarching role of Article 20 due to its triggering of Article 5(1)115 are worthconsidering. For good measure, however, the State party also claimed that thelimitations on Mr. Ross were justified pursuant to those recognised in both

Articles 18(3) and 19(3) respectively.116 Interestingly, the Human RightsCommittee did not echo Canadas claim for an overarching role for Article 20 as

such; however, it recognised the relevance of Article 20 and stated that theCommittee considers that restrictions on expression which may fall within thescope of article 20 must also be permissible under article 19, paragraph 3, whichlays down requirements for determining whether restrictions on expression arepermissible.117 In the consideration of the merits, the Committee proceededto explore the restrictions under Article 19(3) and noted that here, as in Faurissonv. France, [s]uch restrictions derive support from the principles reflected inarticle 20(2) of the Covenant.118

Faurisson v. France119 concerned the case of a professor of literature at theUniversity of Lyon who was dismissed and later fined under the French Gayssotlaw due to alleging that the gas chambers at Auschwitz and other Nazi concen-tration camps were not used for the extermination of the Jews. He claimed viola-tion of his human rights, invoking less a violation of the right to freedom ofexpression, which doesadmit of some restrictions, but of his right to freedom of


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120) Ibid., para. 5.3.121) Ibid., para. 7.10.122) It should be noted that a further two members of the Committee, Christine Chanet andTomas Buergenthal, withdrew themselves from this case in accordance with Rule 85 of theCommittees Rules of Procedure.123) Individual opinion by Elizabeth Evatt and David Kretzmer, co-signed by Eckart Klein, para. 4,attached to Faurisson v. France, supra note 119.124) Ibid.125) Ibid.

opinion and to doubt, as well as freedom of academic research.120 Te State partyinvoked both Article 20(2) of the ICCPR and Article 4 of ICERD, as well as thelimitation grounds within Article 19(3) itself. France also asserted that the Gayssotlaw does not punish the expression of an opinion, but the denial of a historicalreality universally recognized. Te adoption of the provision was necessary in theState partys opinion, not only to protect the rights and the reputation of others,but also to protect public order and morals.121 Te Human Rights Committeedecided the case on the basis of the legitimacy of the restriction on Faurissonunder Article 19(3)(a) and the necessity thereof, and did not further explore therelevance of Article 20(2). However, four of the five individual opinions (signedby seven Committee members)122 appended to the judgment did and two of

them will be considered below.Te individual opinion by Elizabeth Evatt and David Kretzmer, co-signed by

Eckart Klein, concurred but elaborated on some points due to the importance ofthe issues raised. Tey note that the right of the individual to be free from dis-crimination on grounds of race, religion and national origins extends also toincitement to such discrimination, as implicit in the obligation placed on Statesparties under article 20, paragraph 2.123 Whilst holding that the Gayssot Act

does not make explicit reference to incitement, and that Faurissons statementsdid not fall clearly within the boundaries of incitement124 as intended by Article20(2), the authors go on to say:

However, there may be circumstances in which the right of a person to be free from incite-ment to discrimination on grounds of race, religion or national origins cannot be fully pro-tected by a narrow, explicit law on incitement that falls precisely within the boundaries ofarticle 20, paragraph 2. Tis is the case where, in a particular social and historical context,

statements that do not meet the strict legal criteria of incitement can be shown to constitutepart of a pattern of incitement against a given racial, religious or national group, or wherethose interested in spreading hostility and hatred adopt sophisticated forms of speech that arenot punishable under the law against racial incitement, even though their effect may be aspernicious as explicit incitement, if not more so.125

Recognising the significance of Holocaust denial within the French context,therefore, is considered the dominant consideration of the case. Referring to

General Comment 10s recognition that restrictions under Article 19(3) may


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126) Ibid., para. 7.127) Ibid.128) Ibid., para 10.129) Individual opinion by Rajsoomer Lallah, para. 4, attached to Faurisson v. France, supranote 119.130) Ibid., para. 5.131) Individual opinion by Rajsoomer Lallah, para. 9 attached to Faurisson v. France, supranote 119.

relate to the interests of a community as a whole, [and t]his is especially the casein which the right protected is the right to be free from racial, national or reli-gious incitement,126 they recognise the restriction on Faurisson as falling withinthis, as it served to protect the right of the Jewish community in France to livefree from fear of incitement to anti-semitism.127 Tey go on to assert the neces-sity and proportionality of this restriction under Article 19(3) itself when consid-ering not the Gayssot Act in abstracto but on Faurisson in particular and with fullconsideration of his statements as a whole. Here they note that

anti-semitic allegations of the sort made by the author, which violate the rights of others in theway described, do not have the same claim to protection against restriction. Te restrictions

placed on the author did not curb the core of his right to freedom of expression, nor did theyin any way affect his freedom of research; they were intimately linked to the value they weremeant to protect - the right to be free from incitement to racism or anti-semitism; protectingthat value could not have been achieved in the circumstances by less drastic means. 128

Another individual opinion emphasised that,

[i]n so far as restrictions or prohibitions in pursuance of article 20, paragraph 2, are con-

cerned, the element of necessity is merged with the very nature of the expression whichmay legitimately be prohibited by law, that is to say, the expression must amount to advocacyof national, racial or religious hatred that constitutes incitement to discrimination, hostility orviolence.129

Lallah contrasts this content-based approach of restrictions on expression con-tained in Article 20(2) with Article 19(3)s restriction based on the adverse effectthat the expression must necessarily have on the specified objects or interests

which paragraphs (a) and (b) are designed to protect. It is the prejudice to theseobjects or interests which becomes the material element of the restriction or pro-hibition and, consequently, of the offence.130 Since the statements of the authoramounted to the advocacy of racial or religious hatred constituting incitement,at the very least, to hostility and discrimination towards people of the Jewish faith

which France was entitled under article 20, paragraph 2, of the Covenant toproscribe.131


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National and international jurisprudence, therefore, serves to emphasise ourprevious assessment of the particular vulnerability of minorities to the call upon

Article 20s protection. Te case law reiterates the context specific nature of theassessment required in the light of historical experience and the vulnerability ofindividuals or groups to hate speech. Te case law suggests its applicability tomembers belonging to minorities, either alone or along with others, but with fullcognizance of the pattern of violations and hate for the group as a whole.

6. Conclusion

Te objective of Article 20 is clearly to prohibit extreme expression that reaches aparticularly high threshold of propaganda for war or the advocacy of (particular)hatred that constitute incitement to discrimination, hostility or violence. Its rela-tionship with freedom of expression, as well as the limitation (or clawback)clauses and non-discrimination protections in the ICCPR, are the ones mostoften highlighted. However, the objectives of Article 20 should not be distancedfrom other obligations contained within the ICCPR. Tere remains the need to

give effect to the rights contained in the ICCPR as recognised in Article 2(2).Tese rights include those to full equality before the law, the presumption ofinnocence, and due process (Article 14), non-retroactivity (Article 15), equal par-ticipation in public affairs (Article 25), and the rights of minorities (Article 27).Te aim of Article 20 can be understood within the overarching objective of

Article 5 in that it prohibits and addresses one type of action that would have theeffect of destroying the rights and freedoms protected in the ICCPR. It should be

noted that this includes action taken by any State, group or person.Having acknowledged that much broader and richer understanding, how-ever, it is clear that Article 20s bearing will often be on minorities. Te little

jurisprudence that exists, whether nationally or internationally, underscores this.When applying the positive obligation of Article 20, it should also be noted thatits scope goes beyond thepossibilityof interference allowed for in Article 19(b)to the more exacting requirements ofprohibiting such advocacy, hatred andincitement.

For hatred in itselfto incite discriminate or lead to violence suggests (thoughnot in every instance) a history or pattern of violations. Tis, therefore, drawsattention to the State parties failure in eliminating that embedded discriminationagainst particular national, racial or religious groups. Te State should not usestrong interference under Article 20 as a fig leaf for justifying such a failure and,indeed, should be vigilant in ensuring that its own offi cials are not, directly orindirectly, involved in perpetuating such minority abuses. Under Article 20, as in

other actions that destroy the rights and freedoms included in the ICCPR, theState may be complicit or indeed the engineer.


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In sum, a positive and effective governmental role with respect to minorityrights could dramatically reduce the call on the legal actions required of Stateparties in Article 20(2) vis--vis minorities. Its existence, however, serves toemphasise the heightened risk vulnerable minorities can face.

Te overview of relevant cases examined in this article projected an implicitconnection between Articles 20 and 27 of the ICCPR, and between hate speechand the protection of minorities in general. International instruments, however,have not been suffi ciently forthcoming about this connection between hatespeech and the protection of minorities to date. Tis article is an effort to addressthat lacuna.

assignment 1 - minorities and vulnerability article

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