A/HRC/55/47 B. Rabat Plan of Action 21. The Rabat Plan of Action offers expert, deliberated soft law guidance on the distinction that States are required to make between the following three types of expression: “expression that constitutes a criminal offence; expression that is not criminally punishable, but may justify a civil suit or administrative sanctions; and expression that does not give rise to criminal, civil or administrative sanctions, but still raises concern in terms of tolerance, civility and respect for the rights of others”.44 It necessitates a triangular relationship in that incitement entails action by a speaker seeking to instigate an audience with respect to a target group. It does not apply to direct relationships between a speaker and a target. The Rabat Plan of Action recognizes that “incitement to hatred must refer to the most severe and deeply felt form of opprobrium”, and therefore it synthesizes the elements of severity into the following six-part threshold test for the types of hate speech that constitute a criminal offence:45 (a) Context. Context is of great importance when assessing whether particular statements are likely to incite discrimination, hostility or violence against the target group, and it may have a direct bearing on both intent and/or causation. Analysis of the context should place the speech act within the social and political context prevalent at the time the speech was made and disseminated; (b) Speaker. The speaker’s position or status in the society should be considered, specifically the individual’s or organization’s standing in the context of the audience to whom the speech is directed; (c) Intent. Article 20 of the Covenant anticipates intent. Negligence and recklessness are not sufficient for an act to be an offence under article 20 of the Covenant, as this article provides for “advocacy” and “incitement” rather than the mere distribution or circulation of material. In this regard, it requires the activation of a triangular relationship between the object and subject of the speech act as well as the audience; (d) Content and form. The content of the speech constitutes one of the key foci of the court’s deliberations and is a critical element of incitement. Content analysis may include the degree to which the speech was provocative and direct, as well as the form, style, nature of arguments deployed in the speech or the balance struck between arguments deployed; (e) Extent of the speech act. Extent includes such elements as the reach of the speech act, its public nature, its magnitude and size of its audience. Other elements to consider include whether the speech is public, what means of dissemination are used, for example by a single leaflet or broadcast in the mainstream media or via the Internet, the frequency, the quantity and the extent of the communications, whether the audience had the means to act on the incitement, whether the statement (or work) is circulated in a restricted environment or widely accessible to the general public; (f) Likelihood, including imminence. Incitement, by definition, is an inchoate crime. The action advocated through incitement speech does not have to be committed for said speech to amount to a crime. Nevertheless, some degree of risk of harm must be identified. It means that the courts will have to determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group, recognizing that such causation should be rather direct. 22. Regarding context, in conjunction with extent of the speech act, it is not specified whether the analysis of “the social and political context prevalent at the time of the speech” is limited to the immediate geographic context or also extends to the broader context in which repercussions may be felt, given its dissemination. Since dissemination and the channels through which the spread of certain speech may be well established, there is nothing to exclude a broader consideration. It is important, however, to be mindful that such 44 45 GE.23-25950 Ibid., appendix, para. 20. Ibid., para. 29. 7