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Hate speech regularly, if not inevitably, precedes and accompanies ethnic conflicts, and particularly genocidal violence. Without such incitement to hatred and the exacerbation of xenophobic, anti-Semitic, or racist tendencies, no genocide would be possible and persecutory campaigns would rarely meet with a sympathetic response in the general public. In order to successfully prevent genocidal crimes and violence, therefore, it is indispensable to effectively address the problem of systematic incitement to hatred. While less virulent forms of hate speech may be adequately addressed by human-rights law obligations on governments to prohibit such acts, vicious, systematic, and state-organized hate propaganda should be criminalized under international law. Before discussing how hate speech can be treated as an international crime, this article assesses the most important justifications for proscribing hate speech, including the need to protect the human dignity and equality rights of the victims of such speech as well as the need to protect the public peace and the dangers of hate speech in that it may contribute to the creation of a climate of hatred and violence directed against a specific group. The article supports treating systematic incitement to hatred as a form of persecution, an approach recently upheld by the Appeals Chamber of the International Criminal Tribunal for Rwanda. Such an approach most adequately reflects the nature of hate speech and the motivations underlying its criminalization, while also respecting the important right to freedom of speech.

The author critically analyses in this article the status of incitement in international criminal law. After a discussion of the relevant judgments by the Nuremberg Tribunal and related courts, including German de-Nazification courts, the travaux préparatoires of the Genocide Convention and the case-law of the International Criminal Tribunals, the international approach is criticized, particularly its practice of regarding only direct and public incitement to genocide as inchoate, whilst instigation generally is treated as not inchoate. The author recommends the adoption of an approach modelled on German and Swiss domestic law and argues that instigation per se should also be regarded as an inchoate crime.

This article focuses on the development of the crime of incitement to genocide and the prohibition of hate propaganda. It first examines the conflict which exists between these and the right to freedom of speech and concludes that a limitation of this right through prohibition of hate propaganda and criminalization of incitement to genocide is justifiable. The article then analyses how the crime of incitement to genocide and the prohibition of hate propaganda first developed historically, focusing on judgments by the International Military Tribunal at Nuremberg and the Genocide Convention, on the one hand, and on international conventions and case law by the Human Rights Committee and the European Court of Human Rights, on the other. Next, recent ICTR decisions are examined, in which the ICTR has considerably clarified and extended the concept of incitement to genocide. The tribunal has brought it closer to encompassing vicious hate propaganda by acknowledging that in order to incite individuals to commit genocide, incitement in the sense of instigation is insufficient; it requires the prior creation of a certain climate in which the commission of such crimes is possible. Hate propaganda leads to the creation of such a climate. It is argued that, for several reasons, virulent hate propaganda must be accorded the status of an international crime. Genocide could be prevented more effectively if such speech were criminalized. Several efforts to outlaw hate propaganda internationally in the past are examined. The article concludes that it can be regarded as a crime punishable under the Genocide Convention if a purposive interpretative approach is used, and that hate propagandists should be prosecuted for direct and public incitement to genocide if their hate speech is engaged in with the specific intent to commit genocide, and creates a substantial danger of genocide.