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By: Radhika Kapoor and Sharngan Aravindakshan
On the international accountability front, there presently exists an excellent opportunity for clarifying the scope and threshold for speech crimes in international criminal law. In late 2019, the International Criminal Court (“ICC”) authorized the ICC Prosecutor to proceed with investigating atrocities committed against the Rohingya population of Myanmar. In addition, the United Nations International Fact Finding Mission on Myanmar (“FFM”), in its 440-page report on large-scale violations by government forces in Myanmar, stressed the Myanmar government’s strategic and effective use of Facebook to spread hate against the Rohingya among the general populace. Given the emphasis placed on Facebook’s role in fanning the flames of anti-Rohingya hate, it is likely that the prosecution’s charges against the persons responsible will include at least one count of a speech crime, possibly including hate speech amounting to persecution. This article picks up the jurisprudential trail of persecutory speech as a crime against humanity (“CAH”) from the Nahimana Judgment by the Appeals Chamber of the International Criminal Tribunal for Rwanda (“ICTR”) and examines the soundness of its rationale. It then locates the existing standard for persecutory hate speech in the context of the Myanmar-Facebook issue, which instantly makes clear the deficiencies of Nahimana’s muddled legacy.
The ICTR Trial Chamber in Prosecutor v. Nahimana was required to determine whether hate speech (both simpliciter as well as speech accompanying calls for violence) might constitute the underlying actus reus for persecution as a CAH. The Trial Chamber held that it could, ruling that hate speech “targeting a population on the basis of ethnicity, or other discriminatory grounds” could constitute persecution (¶1072). Subsequently, the case reached the ICTR Appeals Chamber. In the years since that final ruling on hate speech as persecution, issued in 2007, the Nahimana Appeal has come to be considered a significant metric to assess hate speech as persecution. However, the Nahimana Appeals judgment failed to articulate a clear, replicable benchmark for hate speech as persecution in international criminal law, both by limiting itself to violations of particular fundamental rights and by misguidedly insisting on calls to violence.
Although the ICTR Statute does not define persecution as a CAH, a series of cases at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) laid important foundations for identifying actions amounting to persecution as a crime against humanity. For instance, the ICTY Trial Chamber in Tadić found that persecution ought to entail an act of discrimination that contravened an individual’s fundamental rights (as enshrined in customary and treaty law). Subsequently, the ICTY Trial Chamber in Kupreskić held that in addition to contravening fundamental rights, the act of persecution should also rise to a level of gravity that was similar to other CAH. This general definition—that persecution required a contravention of fundamental rights, rising to a level of gravity that was similar to other CAH—was accepted by the ICTY Appeals Chamber in Krnojelac, and later by the ICTR Appeals Chamber in Nahimana.
On applying this conception of persecution to the facts at hand, the Nahimana Appeal found that hate speech simpliciterand hate speech that incited violence, targeting a population on the basis of ethnicity or other discriminatory ground, violated the right to respect for dignity and the right to security, respectively (¶ 986). However, the Appeals Chamber also went on to state that “hate speech alone” might not violate a person’s rights to life, freedom, and physical integrity (¶ 986).
To be sure, there can be little dispute with this; not every instance of hate speech necessarily violates these three enumerated rights. But why did the Appeals Chamber class these rights separately from the fundamental rights to security and dignity? Presumably, the Appeals Chamber’s rationale was that violations of rights such as security and dignity would struggle to meet Kupreskić’s gravity threshold before being classified as persecution, while violations of more “serious” rights such as freedom and physical integrity would more easily cross that threshold. This is hinted at in the subsequent paragraph of the judgment, which explicitly questioned whether the violations of the fundamental rights of respect to dignity and security were “as serious” as the other CAH listed in the ICTR Statute (¶ 987). However, in the very same paragraph, the Appeals Chamber also recognized that it was 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 CAH (¶ 987), thereby doing away with any need to distinguish between the effect of violation of different fundamental rights, despite having so distinguished between them. Nowhere, in fact, did the Appeals Chamber justify its illusory, hierarchical differentiation between various fundamental rights.
Additionally, while assessing whether the speech in question satisfied Kupreskić’s “gravity” threshold, the NahimanaAppeals Chamber emphasized the physical impossibility of speech “in itself” successfully killing or physically harming persons (¶ 986). It is difficult to dispute this platitude; however, an insight into the Appeals Chamber’s reasoning can be found in the significance it placed upon the “calls for violence” that accompanied the speech in question to assess that it did, indeed, rise to the level required by Kupreskić. At the same time, the Appeals Chamber seemed skittish about the possibility of what it termed as “mere” hate speech rising to Kupreskić’s standard (¶ 987). The Appeals Chamber did not explain the reason for its forced differentiation between these two kinds of speech.
A Complicated Legacy
Contrary to the Nahimana Appeal Chamber’s insistence, persecution as a CAH does not have to “kill” or “injure” a person in order to attract criminal responsibility; its commission is complete if a fundamental right has been breached, on discriminatory grounds, with a level of gravity similar to other CAH. In any case, given the chapeau requirements of Article 3 of the ICTR Statute, any speech capable of amounting to persecution as a CAH must be “part of a widespread or systematic attack” against any civilian population on national, political, ethnic, racial, or religious grounds. This in effect automatically excludes isolated incidents of hate speech or hate speech not linked to mass violence. Creating an additional layer of differentiation between “mere” hate speech and hate speech calling is both incorrect and unnecessary for the purposes of persecutory speech as a CAH. As the Trial Chamber correctly pointed out, denigrating or dehumanising speech can also generate the requisite conditions conducive to large-scale attacks against the targeted population.
Regardless, the spectre of Nahimana continues to haunt international criminal jurisprudence. As recently as 2018, the Appeals Chamber for the International Residual Mechanism for Criminal Tribunals in Šešelj, after relying on the Nahimana Appeal, muddied the waters further by hinging its finding that there was no persecution upon whether the concerned speech had actually “incited violence” against the victims (¶ 163). Given that the crime of persecution does not – either statutorily or customarily – require a “physical element”, this trend is worrying.
The Nahimana Standard in Myanmar: Hate Speech on Facebook
Over the course of the past decade, senior officials and authorities in Myanmar disseminated inflammatory messages targeting Muslims—particularly members of the Rohingya community —through a variety of channels, including pamphlets, songs, print media, and social media. Significantly, much of this hate speech was disseminated through Facebook. Accordingly, the FFM in its report paid particular attention to the official Facebook accounts of public authorities in Myanmar used to disseminate anti-Rohingya hate speech. These included the official Facebook pages of the Office of the Commander-in-Chief, the State Counsellor’s Information Committee, and the Ministry of Information.
The FFM identified a series of Facebook posts from official accounts implying that murdering non-Buddhists was a “small sin”; repeatedly referring to the Rohingya as “blood-thirsty Bengali terrorists,” illegal immigrants, “aliens,” and “extremists”; and accusing “Bengali terrorists” of “mass murder.” Note that the term “Bengali” is frequently invoked to imply—without basis—that the Rohingya are illegal aliens who do not belong to Myanmar. In its report, the FFM also highlighted various comments under these posts, which used similarly extreme anti-Rohingya language, including references to Islam as the “evil-religion [that would] disappear from our land one day,” and assertions that the Rohingya were “animals” while Rohingya women were dishonest, “unattractive [and] have bad hygiene.”
These posts and communications formed part of the Myanmar authorities’ overarching attempt to paint the Rohingya as a band of terrorists who posed an existential danger to Buddhist lives within Myanmar, paving the way for a military crackdown against the Rohingya in 2017. The FFM acknowledged this as well, finding anti-Rohingya hate speech to be linked to the larger, underlying theme of showing the existence of a “Muslim threat” to the “Buddhist character” of Myanmar.
That a large portion of this campaign of hate was executed on Facebook is not a coincidence. Facebook was already the primary medium for public communication, and Myanmar authorities would frequently rely on it to transmit official information to the public. The official Facebook account of the Office of the Commander-in-Chief had 2.9 million followers, the Ministry of Information had 1.3 million followers and the State Counsellor’s Information Committee had 400,000 followers. Facebook became an easy medium for both anti-Rohingya rhetoric as well as deliberate misinformation from official Myanmar mouthpieces. In a country where Facebook was so ubiquitous that it had come to be considered the Internet, incendiary posts by influential Myanmar authorities spread like wildfire.
It is noteworthy that the Myanmar authorities’ hate speech on Facebook may not have always called for violence or other forms of coercive action—although some certainly did. (Indeed, the authorities’ stratagem appears to have been to paint the Rohingya as violent, instead.) However, despite Nahimana’s indelible—yet unfounded—insistence to the contrary, the crime of hate speech as persecution does not require calls to violence or violations of one’s right to life and physical integrity. As the Appeals Chamber in Nahimana also recognized in principle but failed to incorporate into its findings, hate speech simpliciter—which is devoid of calls to violence—blatantly violated the right of the Rohingya community to dignity, thereby depriving them of a fundamental right enshrined in international law. Today, in the year 2020, it would be difficult for a reasonable trier of fact to deny that the cumulative upshot of the concerned acts, i.e., the various instances of hate speech disseminated by the Myanmar authorities on Facebook in the background of the ongoing and increasing violence against the Rohingya, was a key factor in creating the explosive atmosphere required for the mass, widespread violence against the Rohingya. Hate speech, when resulting in the deprivation of fundamental rights and on meeting the required gravity threshold, constitutes the crime of persecution as CAH. In Myanmar’s case, the government’s consistent anti-Rohingya rhetoric on Facebook to spread instantaneous and widespread racial hatred against the Rohingya should accordingly be tested on the anvil of this threshold. Hopefully, unlike Nahimana, this opportunity to clarify the law will not be missed.