The release of the movie Fitna by the Dutch politician Geert Wilders on 27 March 2008, once again illustrated that actual dealing with hate speech in practice is a lot more difficult than the relevant legislation suggests. Jieskje Hollander poses the question: would it not be better to abolish all hate-speech law?
The paradox of free speech
PhD research assistant at the European Law section of Groningen University, Ms. Jieskje Hollander, argues that the dividing line between tolerable free speech and intolerable hate speech remains extremely vague. She illustrates her position by quoting the informal "paradoxical reaction" of the 27 European Ministers of Foreign Affairs to Fitna on 29 March 2008:
"Freedom of speech and freedom of religion are fundamental values which we will not compromise on. The production of this movie falls within the exercise of the rights all our citizens have. Of course, offences against the law, will have to be dealt with appropriately. Freedom of speech should be exercised with respect for the beliefs or convictions of others."
According to Hollander, this statement seems to suggest that whereas freedom of speech should only be exercised with respect for the rights and beliefs of others, everyone has the right to make movies that do not respect the rights and beliefs of others.
Hollander argues that present legislation does not, or cannot, render what it promises, she argues and therefore "the world can do without vague legislation which governments and officials are unable or afraid to apply in times of acute crisis". Hollander asks if it would not be better to abolish all hate speech legislation.
Hate speech and Human rights law
Jieskje Hollander (1983) wrote a comprehensive thesis on hate speech and the development of its legal status'. In her study she discusses the development of the relation between free speech and hate speech in both a philosophical framework as well as the legal framework. She observes that, from a philosophical perspective as well as from the perspective of international human rights law, there has always been consensus about the principle that freedom of speech should be given as much space as possible.
On the other hand, however, it has also been acknowledged that those forms of speech, which can be dangerous to a democratic society and infringe upon the rights of others should be prohibited in the interest of a peaceful and just world. Therefore, international human rights law included provisions that prohibited conditionally certain forms of speech. States Parties of the human rights treaties were requested, and in certain cases even obliged, to forbid propaganda for wars of aggression and genocide as well as speech inciting to violence or discrimination.
Hate speech law in practice
In theory, the international community succeeded in establishing a coherent approach to dealing with hate speech. But when the general principles were put to practice in courts, the difficulties of implementing measures against hate speech offenders came to the fore. Hollander discusses cases before the International Military Tribunal in Nuremberg, the International Criminal Tribunal for Yugoslavia, the International Criminal Tribunal for Rwanda, the European Court of Human Rights, and the UN Human Rights Committee to illustrate the tensions between the law in theory and the law in practice.
Hollander concludes her investigation with the argument that, at this point in time, the international community seems to have succeeded in reaching a coherent legal approach to the problem of hate speech on both the theoretical level of international human rights law and the practical level of dealing with hate speech in international criminal courts and tribunals. Both in international human rights law and in international criminal law all the difficulties of dealing with hate speech and all the relevant conditions are taken into account.
However, the practical policy of the international human rights courts that are tasked with monitoring the implementation of the human rights treaties deviates from this coherent legal approach. No systematic analysis of the relevant conditions for an utterance to be judged as criminal hate speech is applied.
Jieskje Hollander studied history at Groningen University. In December 2007 she graduated as Master of Arts in History of Political Culture with a sub-specialisation in Contemporary History. During her studies she became especially interested in matters of (inter)national peace and security, transitional justice and human rights. In the autumn of 2006, she did an internship at the ICTY where she worked at the Leadership Research Team of the Office of the Prosecutor.
Since December 2007 she has held the post of PhD research assistant with the European Law section of Groningen University. She works as part of a team of researchers that explores and questions the foundations of modern democracies within a project entitled ‘Contested Constitutions.' She is responsible for an inquiry into ‘constitutionalisation' in the Netherlands within the context of the rise of the European Union.
Hate Speech: A historical inquiry into the development of its legal status.
Read Jieske Hollander's thesis here