New Zealand Human Rights Commission: Te Kähui Tika Tangata International Convention on the Elimination of All Forms of Racial Discrimination Article 4 is the principal provision within ICERD for combatting racial hate speech. It requires States to make racially motivated hate speech an offence stating: States Parties 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, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence 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, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organised and all other propaganda activities, which promote and incite racial discrimination, and shall recognise participation in such organisations or activities as an offence punishable by law. As set out in article 4, States are to give due regard to the principles in the UDHR and the right to freedom of expression. The ICERD Committee recommends that States sanction as offences punishable by law:65 (a) all dissemination of ideas based on racial or ethnic superiority or hatred, by whatever means; (b) incitement to hatred, contempt or discrimination against members of a group on grounds of their race, colour, descent, or national or ethnic origin; (c) threats or incitement to violence against persons or groups on the grounds in (b) above; (d) expression of insults, ridicule or slander of persons or groups or justification of hatred, contempt or discrimination on the grounds in (b) above, when it clearly amounts to incitement to hatred or discrimination; and (e) participation in organizations and activities which promote and incite racial discrimination. It also recommends the following contextual factors to be taken into account when considering whether conduct qualifies as a criminal offence: content and form of speech, economic, social and political climate, position or status of the speaker, reach of the speech, and the objective of the speech.66 The ICERD Committee emphasises that article 4 underlines “the international community’s abhorrence of racist hate speech, understood as a form of otherdirected speech67 which rejects the core human rights principles of human dignity and equality and seeks to degrade the standing of individuals and groups in the estimation of society.”68 Unlike the ICCPR, article 4 of ICERD explicitly requires the criminalisation of speech. It applies to “all dissemination of ideas” that are racist, even if they do not involve incitement to any specified harm. 65 66 67 68 Committee on the Elimination of Racial Discrimination, General Comment No 35: Combating racist hate speech, U.N. Doc. CERD/C/GC/35 (26 September 2013) at [13]. Ibid., at [15]. “Other-directed speech” refers to speech that treats a group of people as “others” and intrinsically different from, and alien to, the speaker. It is speech based on prejudice and group identity and can contribute towards social marginalisation. Ibid., at [10]. 14