PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation wide range of grounds, including disability, gender expression, gender identity, sex, sex characteristics and sexual orientation.1162 Extensive work has been carried out to provide guidance as to how States are to understand whether and in what circumstances speech or other expression may constitute incitement to violence, discrimination or hatred, resulting in particular in the Rabat Plan of Action. The Rabat Plan of Action defines the terms “advocacy”, “hatred” and “incitement” with reference to the definitions developed in the Camden Principles on Freedom of Expression and Equality,1163 a document of international best practice developed by experts on the rights to equality and freedom of expression. Accordingly, it notes that “hatred” and “hostility” refer to “intense and irrational emotions of opprobrium, enmity and detestation towards the target group”; “advocacy” is “to be understood as requiring an intention to promote hatred publicly towards the target group”; and “incitement” refers to “statements about national, racial or religious groups which create an imminent risk of discrimination, hostility or violence against persons belonging to those groups”.1164 The Rabat Plan of Action further states that: “States should adopt comprehensive anti-discrimination legislation that includes preventative and punitive action to effectively combat incitement to hatred.”1165 THE SIX-PART THRESHOLD TEST OF THE RABAT PLAN OF ACTION The Rabat Plan of Action notes “that a high threshold be sought for defining restrictions on freedom of expression, incitement to hatred, and for the application of article 20”. Accordingly, it establishes a “six-part threshold test … for expressions considered criminal offences”, which it sets out as follows: (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 International Covenant on Civil and Political Rights 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 180 1162 CCPR/C/BIH/CO/3, para. 22; and A/HRC/38/43, para. 93. See also A/74/486; and, as concerns sex and gender, A/HRC/38/47, para. 52. OHCHR, in Living Free & Equal, p. 30, sets out that: “States should include sexual orientation, gender identity, gender expression and sex characteristics as protected characteristics in laws against hate crime and hate speech/incitement to hatred or violence.” See also CCPR/C/LTU/CO/4, para. 12 (a); CCPR/C/CZE/CO/4, para. 17; CCPR/C/UKR/CO/7, para. 10; CCPR/C/BLR/CO/5, para. 18; CCPR/C/SEN/CO/5, paras. 14–15; CERD/C/SWE/CO/22-23, paras. 10–11; CEDAW/C/MUS/CO/8, para. 34; CEDAW/C/SUR/CO/4-6, paras. 50–51; and CEDAW/C/FJI/CO/5, para. 52; CAT/C/POL/CO/7, paras. 35–36; CAT/C/RUS/CO/6, paras. 32–33; CRC/C/CRI/CO/5-6, paras. 16–17; and CRC/C/POL/CO/3-4, paras. 16–17. 1163 Article 19, “The Camden Principles on Freedom of Expression and Equality” (London, 2009). Available at www.article19.org/data/files/ pdfs/standards/the-camden-principles-on-freedom-of-expression-and-equality.pdf. 1164 Rabat Plan of Action, para. 21, footnote 5. 1165 Ibid., para. 26.