Hate speech inciting mass violence against civilians is an international crime

The role of Russian propaganda in driving Russia’s aggression and other international crimes in Ukraine has by now been acknowledged at the highest political levels.

On this ‘International Day of Countering Hate Speech’, it is important to underscore the central role this particularly egregious form of propaganda has played in Russia’s attempt to subjugate Ukraine. There is an urgent need to close the legal gap in accountability that allows incitement to hatred and violence, which lay the ground for mass killings, rape and torture of civilians in Ukraine and elsewhere, to continue with impunity.

There is no universally accepted definition of hate speech. However, human rights organisations and governance bodies such as the Council of Europe refer to a range of hateful expression that incites, promotes, spreads or justifies violence, hatred or discrimination against a person or a group, or that denigrates them, on the basis of certain characteristics, including race, colour, religion, descent and national or ethnic origin.

The role of hate speech in Russian propaganda

Russian propaganda is replete with such rhetoric. The various efforts that have tracked, accumulated and analysed Russian hate speech show repeated calls for violence against Ukrainians, such as by advocating ‘real terror’ against them or the ‘complete destruction of Ukraine’; speech dehumanising and denigrating Ukrainians by referring to them as ‘filth’, ‘scum’ and ‘satanists’; concerted efforts to incite hatred of Ukrainians by spreading false and distorted historical narratives, conspiracy theories and accusations in a mirror, including by portraying Ukrainians who do not want to be part of the ‘Russian World’ as ‘Nazis’, and claiming that Ukrainians have repressed and even committed genocide against Russians and Russian-speakers in Eastern Ukraine.

Propagandists including Vladimir Solovyov and Margarita Simonyan, who host the most widely watched political television shows and run the gargantuan disinformation network Russia Today, respectively, are responsible for poisoning the minds of ordinary Russians with hatred against Ukrainians. Yet, it is nearly impossible to hold them accountable for these crimes under the current state of international criminal law.

The challenge of prosecuting hate speech

Prosecuting hate speech in criminal courts, even at the international level, is not new, but more can be done to concretise the legal framework prohibiting the most nefarious types of speech and to sanction the perpetrators.

Last year, the International Federation for Human Rights and its member organisations in Ukraine, the Centre for Civil Liberties and the Kharkiv Human Rights Protection Group, submitted an Article 15 communication to the International Criminal Court (ICC) arguing that calls to violence against Ukrainians, the use of false historical narratives, as well as other forms of propaganda meant to insult, belittle and vilify Ukrainians, amount to hate speech as a form of an international crime – the crime against humanity of persecution. That is, in the context of widespread or systematic attacks against a civilian population, speech by the likes of Solovyov and Simonyan that has the tendency to incite, justify and further such crimes against a group of civilians, is in and of itself – an international crime.

Following the crimes of the Nazis, which were orchestrated by Nazi propaganda chief Joseph Goebbels and facilitated by the likes of Julius Streicher, the publisher of the antisemitic newspaper ‘Der Stürmer’, who was convicted of persecution as a crime against humanity for having ‘infected Germans with the virus of anti-semitism’, propagandists of hate and violence have increasingly become objects of criminal sanction. Since 1948, the year of the adoption of the UN Convention for the Prevention and Punishment of the Crime of Genocide, it has been illegal to directly and publicly call for certain acts with the intent to destroy a national, racial, ethnic or religious group. International criminal courts such as the International Criminal Tribunal for Rwanda and national courts have meted out dozens of convictions for incitement to genocide, but also calls for ethnic cleansing, deportations, murder, torture and other forms of violence.

The shortfalls of existing legal frameworks

However, other than the Genocide Convention, there is currently no international instrument criminalising incitement to mass violence against civilians unless that violence is carried out with the intent to destroy the targeted group as such, in whole or in part.

The Rome Statute of the ICC prohibits incitement to genocide, but it does not expressly criminalise any calls for crimes against humanity or aggression.

This despite the case law and the proliferation of social media, which enables the instant transmission and amplification of hate speech like never before, fueling armed conflict and murderous mass violence. This has been the case in Ukraine, where propaganda of hate has enabled the occupation of Ukrainian lands in Putin’s campaign of ‘denazification’ and spawned a furious hunt for fictional ‘Nazis’ among Ukrainian civilians by the invading Russian soldiers.

A simple illustration shows the absurd state of currently existing binding treaty norms: a propagandist calling for the mass deportation of children as part of an ongoing effort to destroy a part of a national or ethnic group could face charges of incitement to genocide, but advocating for the mass torture of a group of civilians as part of a campaign to subdue a population resisting foreign occupation is not expressly prohibited by international criminal law.

How to bridge the gap?

There is an opportunity today to fill this gap. Last November, the UN General Assembly gave the green light for states to begin deliberations on a new treaty on crimes against humanity, a crime characterised by certain acts when committed as part of a widespread or systematic attack against civilians, including murder, torture, rape and sexual violence, unlawful imprisonment, slavery, deportations and discriminatory persecution. The treaty would require states to implement legislation criminalising this offence and to take measures to prevent it.

Admittedly, there is currently a lack of consensus in the international community as to whether hate speech should be criminalised and if so, which kind. Where to draw the line between the criminal arousal of hatred and mere disinformation or insult, which should not be subject to criminal prosecution even if it shocks or offends, has been subject to intense debate between states. International organisations have also adopted divergent interpretations of what kind of hate speech should lead to criminal liability.

Nevertheless, over 100 states have criminalised some form of hate speech. The lowest common denominator appears to be the criminal prohibition of discriminatory incitement to violence, but various penal codes also proscribe offences like propaganda of war, incitement to ethnic, religious or racial hatred, and historical revisionism like denial of past international crimes. This broad approach is in line with the widely ratified International Covenant on Civil and Political Rights (ICCPR), whose Article 20 requires states to prohibit advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. The Additional Protocol to the Council of Europe Convention on Cybercrime, and the EU Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law, also follow this approach.

The time to act is now

There is no good reason why directly and publicly inciting others to commit crimes against humanity should not be prohibited under international law. Moreover, as most states do already, such a treaty should require state parties to take measures to prevent crimes against humanity including by ensuring that any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law.

These prohibitions, according to the UN Human Rights Committee, would be fully compatible with freedom of expression. The incendiary capacity of modern social media to amplify the volume and reach of hateful statements is immense – not only in the context of Russia’s war against Ukraine, but in dozens of ongoing armed conflicts from Palestine to Myanmar, from to Sudan to Yemen, to name but a few. Therefore, now is the right time to act and to embed prohibitions of hate speech inciting mass violence and discriminatory hatred in a binding international law instrument such as the crimes against humanity treaty.

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By Ilya Nuzov. Ilya Nuzov is an international lawyer and Head of Eastern Europe and Central Asia Desk at FIDH. Article and pictures first time published on the EUvsDisinfo web page. Prepared for publication by volunteers from the Res Publica - The Center for Civil Resistance.