A/HRC/2/6 page 11 35. Clear guidelines and coherence are important to ensure effective implementation of the law and the promotion of tolerance which should be the goal of the law. On the other hand, the risk of undermining human rights in general increases when there is no consensus and common understanding of the essential elements of the law. This is an area where the Human Rights Council can make an important contribution to guide the national implementation of the law in a manner that can promote tolerance without undermining other human rights. A. The notion of incitement 36. Despite the apparent widespread agreement that certain categories of harmful speech or speech that provoke harmful consequences can be legally proscribed, the notion of incitement and other key concepts are not well defined. The international and regional instruments generally do not provide any definitions and the relevant monitoring bodies have encountered difficulties in articulating suitable definitions for purposes of implementation. For example, the Human Rights Committee has avoided a definition of hate speech or incitement and instead focused on the potential harm of speech on the rights of others and whether it was necessary to prevent that harm (see, e.g. Ross v. Canada31 and Faurisson v. France 32 both of which focused on the impact of the statements in raising anti-Semitic feelings). 37. Attempts to define hate speech have not generated much consensus. For example, the Council of Europe’s Recommendation on hate speech has proposed a broad definition of “hate speech” that encompasses “all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”.33 This is very inclusive and may raise more questions than it solves. Similarly, the ICTR’s definition of hate speech in the Nahimana Case as “stereotyping of ethnicity combined with its denigration” is also unsatisfactory, because the two elements, stereotyping and denigration, are not self-defining. 38. The notion of incitement is generally used to connote at least three different ideas: (a) incitement to an illegal act that takes place (e.g. genocide, violence, discrimination); (b) incitement to an illegal act that does not take place but creates in the mind of the recipient the requisite desire to commit an illegal act; and (c) creating a certain state of mind – racial hatred, racism – without a link to any particular illegal act. The first two are probably the least problematic from a practical standpoint as illustrated by the genocide cases. 39. The international and regional human rights instruments embrace somewhat different notions of incitement. For example, article 20, paragraph 2, of ICCPR and article 13, paragraph 5, of the ACHR ban the advocacy of hatred. Thus, in order to convict someone under either provision it is necessary to prove advocacy with the intent to sow hatred. On the other hand, article 4(a) of ICERD prohibits the mere dissemination of ideas based on superiority and racial hatred. Under ICERD, the dissemination of the idea itself is what attracts sanction without any further or requirement about its intent or impact.34 This may seem a subtle difference but it is significant in determining the scope of the law. 40. Moreover, the instruments also apply different terminologies to describe the nature of the offense, but presumably reflecting similar notions. Article 20, paragraph 2, of ICCPR prohibits “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. On the other hand, the equivalent provision in article 4(a) of ICERD to