A/HRC/12/38
page 14
(d) The adjudication of such limitations should be made by an independent and impartial
judiciary.
42. In conclusion, the three mandate holders reminded that the ultimate goal was to find the
most effective ways through which to protect individuals against advocacy of hatred and
violence by others. Hate speech is but a symptom, the external manifestation of something much
more profound which is intolerance and bigotry. Therefore, legal responses, such as restrictions
on freedom of expression alone, are far from being sufficient to bring about real changes in
mindsets, perceptions and discourse. The three experts reaffirmed that, in order to tackle the root
causes of intolerance, a much broader set of policy measures was necessary, for example in the
areas of intercultural dialogue or education for tolerance and diversity. In addition, this set of
policy measures should also include strengthening freedom of expression. Indeed, the strategic
response to hate speech is more speech: more speech that educates about cultural differences;
more speech that promotes diversity; and more speech to empower and give voice to minorities,
for example through the support of community media and their representation in mainstream
media. More speech can be the best strategy to reach out to individuals’ hearts and minds,
changing what they think and not merely what they do.
III. CONCLUSIONS AND RECOMMENDATIONS
43. The Special Rapporteur welcomes the important developments that have occurred in
the last year on the issue at hand. He recalls the recommendation of his predecessor
(A/HRC/9/12, para. 65) that the Human Rights Council should “encourage a shift away
from the sociological concept of the defamation of religions towards the legal norm of
non-incitement to national, racial or religious hatred, on the basis of the legal provisions
laid down in international human rights instruments, in particular articles 18 to 20 of the
International Covenant on Civil and Political Rights and article 4 of the International
Convention on the Elimination of All Forms of Racial Discrimination”.
44. In addition, the Special Rapporteur would like to highlight the initiative of the
High Commissioner for Human Rights in organizing an expert seminar on the topic, which
helped to further clarify the contours of this debate and set some important ideas for the
future. He also would like to express his support for the idea of the High Commissioner
that a series of expert workshops be held in order to attain a better understanding of
legislative patterns and judicial practices in the different regions of the world, reflecting
the various legal systems and traditions with regard to the concept of incitement to racial
or religious hatred as contained in article 20 of the International Covenant on Civil and
Political Rights, and to arrive at a comprehensive view of the state of implementation of the
prohibition of incitement (A/CONF.211/PC.4/5, para. 58, which is also reaffirmed in the
outcome document of the Durban Review Conference, para. 134).
45. The Special Rapporteur believes that the agreement reached in the outcome
document of the Durban Review Conference constitutes a fine balance in reaffirming the
importance of freedom of expression and highlighting the need to curb hate speech. He
therefore recommends that this consensual document be used as a reference in the way
forward when approaching difficult questions such as that of incitement to racial or
religious hatred. He particularly recommends that policymakers rely on the robust and
adequate language of the outcome document and implement it domestically.
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