CCPR/C/117/D/2124/2011 Annex IV Individual opinion (concurring) of Committee members Sarah Cleveland and Mauro Politi 1. We support the Committee’s conclusion that the Netherlands did not violate its obligations under article 2(3) in conjunction with articles 20(2) and 26 in this case. As this is the first time the Committee has had occasion to address article 20(2) on the merits, we write separately to elaborate on the meaning of that provision. 2. Advocacy of hatred and incitement to violence, hostility and discrimination, including on grounds of race, ethnicity, religion, or nationality, has no place in a pluralistic and human rights respecting society, and should be vigorously countered. It is axiomatic, however, that a human rights protective society must also tolerate speech that deeply offends.a In addition, societies have numerous positive and negative tools available to address hateful speech. To the extent that restrictions on speech are warranted, a State must employ the least restrictive means available to secure that legitimate end.b 3. Article 20(2) obligates States to “prohibit by law” the “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” This provision originally was drafted as one of the obligations imposed by article 19 regarding freedom of expression, and it thus relates closely to that article. Moreover, the obligation to prohibit conduct by law is not unique under the Covenant. Other articles likewise obligate States parties to prohibit certain conduct, including article 8(1) (obligating States parties to prohibit slavery and the slave trade), article 26 (obligating States parties to prohibit discrimination), and article 6(1) (requiring protection by law of the right to life). Article 20 is unique, however, in that it requires prohibition of conduct in an area that otherwise is highly protected freedom of expression under article 19. 4. For this reason, article 20(2) is narrowly circumscribed and sets a high bar for the expression that must be prohibited. On its face, Article 20(2) does not require legal prohibition of all “advocacy of national, racial or religious hatred,” but only of such advocacy that also “constitutes incitement to discrimination, hostility or violence.”c In other words, advocacy of national, racial or religious hatred alone is not sufficient. It must also have the intention of inciting to discrimination, hostility or violence. d Article 20(2) thus is distinctly more limited than article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which obligates States parties, inter alia, a b c d General Comment No. 34, Article 19: Freedoms of opinion and expression (2011), para. 11. Id., para. 34 (restrictions “must be the least intrusive instrument amongst those which might achieve their protective function”). Moreover, the State must demonstrate in specific fashion the precise nature of the threat to any of the enumerated grounds listed in article 19(3) that has caused it to restrict freedom of expression. Id., para. 36. This limitation on scope of article 20(2) was intentional. The drafting history indicates that “[f]ears were expressed that an article prohibiting such advocacy might lead to abuse and would be detrimental to freedom of expression.” Thus a formulation limiting article 20(2) to “only such advocacy … as ‘constitutes incitement’” was adopted. UNGA, Draft International Covenants on Human Rights, Annotation, A/2929 (1955), pp. 185-86, paras. 190-192 (emphasis added). Cf. Joint Statement on Racism and the Media by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression (2001), at 2, http://www.article19.org/pdfs/igo-documents/three-mandatesstatement-1999.pdf (“[N]o one should be penalized for the dissemination of ‘hate speech’ unless it has been shown that they did so with the intention of inciting discrimination, hostility or violence”) (emphasis added). 25