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55. The International Convention on the Elimination of All Forms of Racial
Discrimination and the International Covenant on Civil and Political Rights both
impose strong 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.
56. The Special Rapporteur recalls that article 2 (1) of the International Convention
on the Elimination of All Forms of Racial Discrimination stipulates that States parties
undertake not to sponsor, defend or support racial discrimination by any persons or
organizations, including those espousing racial superiority and intolerance. Article 4
of the Convention requires States parties 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.
57. 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 declare punishable by law all dissemination of ideas bas ed
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. The Committee on the Elimination of Racial Discrimi nation
has recommended concrete guidance for States parties on the adoption of legislation
combating racist speech falling under article 4, and the Special Rapporteur
encourages States to review the Committee’s general recommendation No. 35 (2013)
on combating racist hate speech. In the general recommendation, 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.
58. Article 19 of the International Covenant on Civil and Political Rights protects
freedom of opinion and of expression. Any restriction on freedom of speech must not
only be a matter of necessity, but must be proportionately tailored to achieve the
legitimate end that warrants the restriction. Article 20 of the Covenant stipulates that
States parties must 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, because 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 these actors to account for their
violations of international human rights law.
59. 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 unde r
international human rights law. For determining what racist expression should be
punishable by law, the Committee stresses the importance of context, which includes:
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