A/HRC/50/61
72.
Both the Convention and the International Covenant on Civil and Political Rights
impose strict limitations on the propagation of racist and xenophobic ideas, and outlaw the
advocacy of national, racial or religious prejudices that amount to incitement to
discrimination, hostility or violence. Speech that constitutes advocacy of antisemitic, racial
and religious prejudices amounting to incitement to discrimination, hostility or violence is
thus unlawful and prohibited under the applicable legal frameworks. The Special Rapporteur
also recalls that under article 20 of the Covenant, any forms of propaganda for war shall be
prohibited by States parties.
73.
The Special Rapporteur recalls that in accordance with article 2 (1) of the Convention,
States parties are not to sponsor, defend or support racial discrimination by any persons or
organizations, including those espousing racial superiority and intolerance. In accordance
with article 4 of the Convention, States parties are to condemn all propaganda and all
organizations which are based on ideas or theories of superiority of one race or group of
persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred
and discrimination in any form. This means that States parties must take action to prohibit
organizations that meet the conditions articulated in article 4 (b), including in contexts in
which such organizations use antisemitic fervour to attempt to mainstream their extreme
ideologies or racial, ethnic or religious hatred and intolerance. Legislation alone is not
sufficient. Article 6 of the Convention makes clear that effective protection from and
remedies for racial discrimination are just as important as formal provisions.
74.
Article 4 of the Convention also requires States parties to undertake to adopt
immediate and positive measures designed to eradicate all incitement to, or acts of, such
discrimination, and to make punishable by law all dissemination of ideas based on racial
superiority or hatred, incitement to racial discrimination, as well as all acts of violence or
incitement to such acts against any race or group of persons of another colour or ethnic origin.
In its general recommendation No. 35 (2013) on combating racist speech, The Committee on
the Elimination of Racial Discrimination issued concrete guidance for States parties on the
adoption of legislation combating racist speech falling under article 4. To benefit from that
guidance, the Special Rapporteur encourages States to review the recommendation, in which
the Committee recalls that the proscription of racist hate speech and the flourishing of
freedom of expression should be seen as complementary, and that the rights to equality and
freedom from discrimination, and the right to freedom of expression, should be fully reflected
in law, policy and practice as mutually supportive human rights.
75.
Article 19 of the Covenant protects freedom of opinion and of expression. Any
restriction on freedom of speech must be not only a matter of necessity, but also proportionate
to achieving the legitimate end that warrants the restriction. Article 20 of the Covenant states
specifically that States parties shall prohibit, by law, any advocacy of national, racial or
religious hatred that constitutes incitement to discrimination, hostility or violence. The
Human Rights Committee and a number of other human rights mechanisms have interpreted
this provision as creating a high threshold, as limitations on speech must remain exceptional.
When individuals or groups meet this high threshold, including in the context of antisemitic
hate speech, States must hold those actors to account for their violations of international
human rights law.
76.
The Committee on the Elimination of Racial Discrimination has reiterated that
freedom of expression is integrated into the Convention, and that the Convention contributes
to a fuller understanding of the parameters of freedom of expression under international
human rights law. For determining what racist expression should be punishable by law, the
Committee stresses the importance of context, which includes: (a) the content and form of
the speech; (b) the economic, social and political climate; (c) the position or status of the
speaker; (d) the reach of the speech; and (e) the objectives of the speech. Member States, and
even such private actors as the technology companies that often directly interface with racist
and xenophobic content online, must remain vigilant in their identification of racist
expression in national climates in which certain groups, including neo-Nazis, are openly
committed to spreading and enforcing intolerance. The Committee warns that racist speech
may sometimes rely on indirect language to disguise its targets or objectives and on coded
symbolic communication to achieve its ends. Even incitement may be express or implied,
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