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Hate Speech as Persecution: Tackling the Gordian Knot

Two recent incidents have reignited the question of whether hate speech can constitute the actus reus for persecution, giving rise to a successful charge of crimes against humanity under the Rome Statute of the International Criminal Court (ICC). First, the report of the UN International Fact Finding Mission on Myanmar (FFM) to the United Nations Human Rights Council highlighted the use of Facebook by Myanmar authorities to create “a climate in which individuals and groups may become more receptive to incitement and calls for violence” against the Rohingya population. Second, the ICC recently authorized an investigation into atrocities committed by the Myanmar government on the Rohingya population. This post examines the standard for hate speech to constitute persecution as a crime against humanity as set out by the International Criminal Tribunal for Rwanda (ICTR) in Prosecutor v. Nahimana, and assesses whether hate speech simpliciter can amount to persecution as a crime against humanity. A Hazy Standard Under Article 3 of the Statute of the ICTR, ‘persecution’ is a crime…

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EJIL: The Podcast! Episode 4 – Court Between a Rock and a Hard Place

For quite some time, the International Criminal Court (ICC) was criticised for focusing exclusively on Africa, as opposed to investigating situations in which powerful western states are heavily involved or have strong interests. In the first part of this episode, Kamari Clarke, Professor of Anthropology at the University of California Los Angeles and author of the recent book…

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Is the International Criminal Court destined to pick fights with non-state parties?

There have been reports of a communication to the International Criminal Court alleging that the treatment of Uighurs in Xinjiang by Chinese authorities constitute international crimes within the Court’s jurisdiction. The jurisdictional basis of the claim is that China’s conduct involved forced deportations to Cambodia and Tajikistan, which are parties to the statute even though China is…

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The ICC Appeals Chamber Signals a Possible Change in Approach to the Permissibility of Trials in Absentia

On 28 May 2020, the Appeals Chamber of the International Criminal Court (ICC) issued a decision in the Gbagbo and Blé Goudé case that has the potential to alter how trials are conducted at the ICC. The decision denied Mr Gbagbo’s request for reconsideration of a decision relating to an earlier appeal filed by the Prosecution, and…

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The Situation in Afghanistan, US Sanctions and the Historical Narratives Emerging from the ICC

On 11 June 2020, the US announced a series of economic and travel sanctions against any officials of the ICC involved in an investigation into whether US forces committed war crimes related to the Afghan conflict (see here). The ICC Appeals Chamber had previously authorised the ICC Prosecutor to commence such an investigation (see…

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