“Between Freedom and Hate – The Lines Drawn by the ECHR” International Conference on the Prevention of Genocides
Dear Minister Reynders,
Secretary General Ban Ki-Moon,
Your Excellencies and Distinguished Guests,
It is a privilege to be able to address you today.
Raphael Lemkin, the lawyer and Holocaust survivor once said: "It takes centuries and sometimes thousands of years to create a national culture, but genocide can destroy a culture instantly, like a fire can destroy a building in an hour."
We must therefore make sure the "never again" becomes an unshakable reality and not just an honourable declaration.
The danger is always there.
It is especially present in times of economic hardship such as the present.
Hatred is an essential prerequisite for genocide.
This is why the Council of Europe is so committed to stamping out hate speech and tackling intolerance whilst at the same time defending free speech.
The Council of Europe was set up in the aftermath of World War II and very much in response to the horrors of the Holocaust.
To this day, the European Court of Human Rights continues to play a crucial role in condemning public expressions of anti-Semitism, racism and discrimination against minorities – which are contrary to the European Convention of Human Rights.
One of the most important questions faced by the Court is to assess the line between freedom of expression and hate speech or to determine the limits of freedom of expression.
It is one of the key challenges of our time.
It is a difficult question.
Take the case of Bingöl v. Turkey. The applicant, a politician, was convicted for a speech dealing with the history of the Kurdish people which contained vigorous criticism of the policies of the Turkish state.
He was convicted for having incited hatred.
But the Strasbourg Court found there had been no incitement to hatred because even if the speech had a hostile connotation, it did not incite violence or hatred. Moreover, it the speech was given in the context of a debate on a question of legitimate public interest.
Attacks on persons through defamation, libel or incitement to discrimination may also justify state interventions to protect against hate speech.
Another challenge for several member States is to draw the line between blasphemy and legitimate criticism of religion.
So where – and how – does the European Court of Human Rights draw the line?
Before accepting a certain restriction, the Court will consider a variety of factors.
The most important issue is whether a statement incites racial or ethnic hatred and second, whether it incites violence.
Additional factors are also considered.
Many are linked to the circumstances in which the speech was made and its content. For example, if the speech was made with bad intent or delivered at a particularly sensitive moment.
The Council of Europe is currently developing a new curriculum to guide judges and prosecutors when dealing with cases related to hate speech.
As the Court emphasized back in 1976, freedom of expression constitutes the right to "offend, shock or disturb."
The Court made it clear that without this right it would be impossible to have a democratic society.
That being so, freedom of expression cannot be unlimited.
There are times when some forms of expression have to be prevented.
One such example is Holocaust denial.
The Court has made clear that the negation of the Holocaust is one of the most serious forms of racial defamation and an incitement to hatred.
There are many other examples.
Take the recent German case of Hizb Ut-Tahrir and Others from 2012.
This case concerned the prohibition of the activities of an Islamic association calling for the violent destruction of the state of Israel and for the killing of its inhabitants through suicide attacks against civilians.
The Court found that the applicant exercised his rights for purposes which were clearly contrary to the values of the Convention.
Or think back to a similar case of the Belgian parliamentarian and chairman of a nationalistic political party who distributed election leaflets bearing slogans such as "Stand up against the Islamification of Belgium" and "Send non-European job-seekers home."
The applicant was convicted of incitement to racial discrimination and sentenced to community service and disqualified from holding parliamentary office for ten years.
The Court found that these sanctions were justified.
Because the leaflets could have provoked feelings of distrust and even hatred towards foreigners.
When dealing with hate speech one of the most dangerous mistakes one can make is to think that they are just words.
Let us never forget that genocide does not happen at the blink of an eye.
The minds of people have to be perverted to such a degree that it becomes the norm to deny the very right to existence to entire groups of the population.
We saw this in Nazi Germany.
We saw this in Srebrenica.
And, of course, we saw this in Rwanda twenty years ago.
These tragedies demonstrated that hate speech and incitement to violence against a specific group of people is instrumental to creating an environment in which genocide can take place.
In Rwanda, the killers often carried a weapon in one hand and a transistor radio tuned to a Hutu extremist radio station, in the other.
The radio station broadcast the names, addresses and license plate numbers of Tutsi and moderate Hutu who were marked for extermination.
Hate speech, even without a clear call to violence, is extremely dangerous.
It involves discrimination and even dehumanization, often of vulnerable groups in society.
That is why we must never shy away from our responsibility to combat hate speech.
This sad anniversary of the genocide in Rwanda reminds us that to make "never again" a reality we need effective international instruments and mechanisms.
But above all we need political will and the courage to act.
Let me finish with the words of Pierre Henri Teitgen, one of the founding fathers of the European Convention on Human Rights.
Speaking in 1949, a few years after the horrors of the Second World War, Teitgen said the following:
"Evil operates cunningly. One by one, freedoms are suppressed, in one sphere after another. Public opinion and the entire national conscience is asphyxiated … It is necessary to intervene before it is too late. A conscience must exist somewhere which will sound the alarm…."
The Council of Europe will always be that conscience.
22 December 2017
Letter to the President of Romania, Klaus Iohannis