Advocacy Genocide or Holocaust Denial: Special Cases?

Some commentators argue that the issues of advocacy of genocide or denial of the Holocaust constitute special cases within the debate on hate speech and incitement.  According to the 1948 Genocide Convention, “direct and public incitement to commit genocide” is a punishable act,(1) following the role of the media in perpetuating hatred against Jewish people in Germany and advocating for their extermination.

Likewise, in Rwanda the media played a crucial role during the genocide in drumming up hatred and distributing propaganda, which led to the first prosecutions at the International Criminal Tribunal for Rwanda (ICTR) for “direct and public incitement to commit genocide.”  In the same way as hate speech, incitement to genocide was defined as an inchoate crime, meaning it is not necessary for genocide to have actually occurred for the crime to have been committed, but it did require intent.

The most notable case brought against journalists at the ICTR was Nahimana et al, known as the Media Trial.(2) Two of the respondents were the founders of a radio station that broadcast anti-Tutsi propaganda before the genocide and the names and licence plate numbers of intended victims during the genocide.(3) They were convicted, among other things, of persecution, one of the acts which makes up crimes against humanity, for disseminating hate speech.(4)

The Rome Statute establishing the International Criminal Court also establishes the crime of incitement to genocide.(5)

The genocide of the Jews in Nazi-occupied Europe was such a formative event in the creation of the European human rights system that Holocaust denial — claiming that the genocide did not occur — is an offence in several countries and is treated in a particular fashion within the jurisprudence of the European Court of Human Rights.(6) These decisions reflect the particularly sensitive issue of the historical memory of the Holocaust in many European countries and the application of the European Court of Human Rights’ ‘margin of appreciation’ doctrine, whereby Council of Europe member states are afforded some discretion on certain issues. However, from a principled perspective, Holocaust denial prohibitions raise human rights concerns. First, they may be considered discriminatory in that they single out a single genocide. Second, should engaging in revisionism amount to hate speech in a given context, it is unclear why dedicated genocide denial laws would be necessary to prosecute these offences instead of applying general hate speech provisions. And, should revisionism not amount to hate speech, it is very questionable whether it should be prohibited at all.

The growth of social media platforms has raised new concerns about the proliferation of incitement to genocide and other forms of hate speech.  Facebook has come under criticism for its role in allegedly fuelling the spread of hateful content against the Rohingya minority in Myanmar through its failure to take sufficiently effective measures to remove hateful posts, a situation partially caused by the company’s having had insufficient numbers of moderators and fact-checkers familiar with the situation in Myanmar and proficient in Burmese.(7) Another concern is Facebook’s alleged role in amplifying hate speech through its algorithms, which prioritise sensational content.(8) Facebook’s role in the violence against the Rohingya was referenced in a report by a UN Human Rights Council-authorised fact finding mission on Myanmar:

74.         The role of social media is significant. Facebook has been a useful instrument for those seeking to spread hate, in a context where, for most users, Facebook is the Internet. Although improved in recent months, the response of Facebook has been slow and ineffective. The extent to which Facebook posts and messages have led to real-world discrimination and violence must be independently and thoroughly examined. The mission regrets that Facebook is unable to provide country-specific data about the spread of hate speech on its platform, which is imperative to assess the adequacy of its response.(9)

UN Human Rights Council, ‘Report of the independent international fact-finding mission on Myanmar’, A/HRC/39/64 (2018)

Facebook’s role may come under judicial scrutiny because of class action filed in the US against Meta and a letter of notice filed in the United Kingdom by Rohingya refugees.(10)