The Hartford Guidelines on Speech Crimes in International Criminal Law
Peace and Justice Initiative (PJI): The Hague, Netherlands, Forthcoming
154 Pages Posted: 24 Aug 2018 Last revised: 9 Mar 2020
Date Written: August 14, 2018
The Hartford Guidelines on Speech Crimes in International Criminal Law are a comprehensive survey of individual criminal responsibility for harmful speech acts under international criminal law. The Guidelines offer a restatement of current international law concerning speech crimes with a view to assisting international agencies, national authorities and other actors contemplating appropriate regulatory responses to inciting speech and associated human rights violations. As such, they provide legal actors with an urgently needed, authoritative and systematic legal framework for regulating and sanctioning speech that violates international legal standards. Speech crimes are a decidedly unsettled area of international criminal law. There is confusion regarding the inchoate status of incitement to genocide, a lack of clarity about whether hate speech could constitute an element of persecution (a crime against humanity) in the Statute of the International Criminal Court, and general uncertainty regarding the evidence required to demonstrate causation for modes of liability such as instigation. Crucially, the preventative potential of the legal regulation of speech remains unrealized. At a moment in history when nativist and chauvinistic populism is on the rise, it is more pressing than ever to define the international consensus on the limits of free speech. The Hartford Guidelines recommend: • Emphasizing the preventative potential of the international criminal law. • Indicting inchoate crimes rather than completed crimes and treating incitement to genocide as an inchoate crime not a mode of liability for completed crimes. • Including hate speech as a form of the crime of persecution in article 7 of the Statute of the International Criminal Court. • Amending article 25(3)(e) of the Rome Statute to include a form of liability of intentionally, directly and publicly inciting the commission of any crime under the Statute, irrespective of whether those crimes are attempted or committed. • Drawing from social science research to evaluate speech according to a checklist of indicative factors known to elevate the risk of violence against targeted groups.
Keywords: Incitement, Hate Speech, Instigation, International Criminal Law, International Tribunals, Rome Statute, International Criminal Court
Suggested Citation: Suggested Citation