Hate speech and mass atrocities [Discussion of Prosecutor v Vojislav Šešelj (Trial Chamber III) IT-03-67-T (31 March 2016)]

• Citation: (2022) 33 Stell LR 723
• DOI: https://doi.org/10.47348/SLR/2022/i4a9
• Published date: 28 March 2023
• Pages: 723-739
• Author: Agbor, A.A.
• Date: 28 March 2023

723

https://doi.org /10.47348/ SLR/2 022/i4 a9

HATE SPEECH AND MASS ATROCITIES

[DISCUSSION OF PROSECUTOR v VOJISLAV

ŠEŠELJ (TRIAL CHAMBER III) IT-03-67-T

(31 MARCH 2016)]

Avitus A Agbor

LLB (Hons) LLM PhD

Research Professor of Law, Faculty of Law

North-West University

Abstract

Even though there is extensive legal literature on the culpability of authors

of hate speech that results in mass atrocities, it remains indisputable that

the prosecution of hate speech in international criminal tribunals is still

riddled with legal complexities. The recent decision of the Trial Chamber of

the International Criminal Tribunal for the former Yugoslavia in the case of

Prosecutor v Vojislav Šešelj (Trial Chamber III) IT-03-67-T (31 March 2016)

(“Šešelj”) brings to life the view that we are not only getting deeper in the

legal maze but far from laying this issue to eternal rest. The decision to acquit

the accused because of the prosecution’s failure to prove beyond reasonable

doubt that his speeches had led to the atrocities for which he was charged,

evoked the element of causation. In application, that view would resonate

squarely with the “but for” test which is one of the pillars of the element of

causation in criminal law. Steering away from a doctrinal discussion of the

merits of the “but for test”, this contribution critiques the Trial Chamber’s

judgment in the Šešelj case: taking an evidence-based approach that examines

the culpability for hate speech prior to the Šešelj decision, the contribution

explores the underlying theoretical and jurisprudential aws in the Šešelj

judgment.

Keyword s: Hate speech; mass atrocit ies; causation; the “ but for” principle;

instigation as a mode of par ticipation; direct and public incitement to commit

genocide

1 Introduction

Prior to Prosecutor v Vojislav Šešelj1 (“Šešelj”), the framework for the

prosecution of hate speech in international criminal law was clearly established

(both the legal arrangements and jurisprudence of international criminal

tribunals). Šešelj signals that this may no longer be the case. This contribution

explains why.

1 ICTY Prosecutor v Vojislav Šešelj ( Trial Chamber III ) IT-03-67-T (31 March 2016)

(2022) 33 Stell LR 723

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https://doi.org /10.47348/ SLR/2 022/i4 a9

Šešelj was acquitted on all counts by the Trial Chamber. However, the

judgment in the Šešelj case raises a few concerns relating to the prosecution of

serious crimes in international law generally. These concerns, as discussed in

this contribution, are rst, the use of the “but for” test with regards to hate speech

that results in the commission of serious crimes in international law as the sole

criterion for the determination of causation; secondly, the departure from the

approaches taken by other (international) criminal tribunals in determining

liability for hate speech that results in mass atrocities; and lastly, a complete

disregard of the unique nature of hate speech as a mode of participation in mass

atrocities. I argue in this contribution that the reasoning of the Trial Chamber

on the issue of hate speech and mass atrocities is illogical when viewed from

rst, a theoretical perspective (on liability for hate speech that results in mass

atrocities) and secondly, the way previous international criminal tribunals have

reasoned on the issue.

Amidst the array of procedural aws and substantive defects recorded in

the Trial Chamber’s lengthy judgment, this contribution focuses on one

aspect: the prosecution of hate speech that amounts to instigation as a mode

of participation as contemplated in the Statute of the International Criminal

Tribunal for the former Yugoslavia2 (“Statute of the ICTY”). Reviewing the

primary and secondary sources on the issue of hate speech and mass atrocities

in international criminal justice, this contribution commences with a synopsis

of the Trial Chamber’s judgment and focuses on the issue of hate speech (as

a mode of participation) and persecution on political, racial and religious

grounds (as a crime against humanity).3 This is followed by a discussion

of the criminalisation of hate speech from the Charter of the International

Military Tribunal, Nuremberg4 (“Charter of the IMT, Nuremberg”), to the

Statute of the International Criminal Tribunal for Rwanda5 (“Statute of the

ICTR”). The contribution then critiques the judgment of the Trial Chamber

on the issue of the culpability for hate speech. This warrants an exposition on

the “but for” test and the uniqueness of hate speech as a mode of participation

in mass atrocities. In conclusion, it is argued that given the uniqueness of hate

speech as a mode of participation, applying the “but for” test may pose several

legal challenges. Rather, a tribunal dealing with hate speech that results in the

commission of serious crimes in international law should consider and apply

the contributory cause(s) approach: a not very technical aspect of causation

that requires a comprehensive assessment of the accused’s contribution to the

commission of the crime.

2 United Nations S ecurity Council (“U NSC”) UN Doc S/R ES/827 (25-04-1993) as amended (“Stat ute of

the ICTY”)

3 Art 5(h)

4 (London, adopted on 08-08-1945) 82 UN Treaty Series 279, entere d into force 08- 08-1945 (“Charter of the

IMT, Nuremberg ”)

5 UNSC UN Doc S/ RES/955 (08-11-1994) (“Statute of the ICTR”)

724 STEL L LR 2022 4

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