Freedom of Expression, Hate Speech, and Incitement to Terrorism and Genocide: Resonances and Tensions

Abstract

What is the relationship between international human rights law and domestic laws that strive to protect free speech while regulating hate speech, and incitement to terrorism and genocide? Examining the interplay between and among these different legal regimes demonstrates that international and domestic approaches to regulating hate speech and incitement help inform our general notions of the human rights boundaries regarding speech regulation. These policy and enforcement lessons are invaluable for any effective approach to criminalizing incitement to genocide and incitement to terrorism. The former has already been developed with those lessons in mind, but the latter is at an early stage. In addition, although incitement to genocide superficially differentiates itself from incitement to terrorism in certain obvious ways – most importantly the discriminatory-liquidation bent of genocide versus terrorism’s intimidation-for-political gain focus, they actually share much in common. This is true upon deeper consideration of each delict’s elements, overall objectives, enforcement priorities, and rhetorical techniques. Given these resonances, development of incitement to terrorism could benefit greatly from the jurisprudential wisdom that has accumulated around incitement to genocide. In turn, both of these speech-offense branches are helpfully contextualized, from doctrinal and policy perspectives, by international human rights and domestic laws. This paper examines how these legal regimes, different in many important respects but also inextricably linked in certain others, interact with and influence one another. Whether the goal is to eliminate enemies through concentration camps or via blowing up thousands of citizens at once, the speech that inspires the perpetrators can be studied as the lynchpin for, and foundation of, international crimes. Understanding and eradicating one might then lead to better understanding and eradicating the other. We must keep this in mind as we attempt to develop a comprehensive and effective approach to incitement law.

Keywords: Incitement to Terrorism, Incitement to Genocide, Hate Speech, Freedom of Speech, Terrorism, Genocide, Human Rights Law, International Criminal Law