Hate and Anti-Semitism: An Issue for International Law

For thousands of years, antisemitism has plagued the international community. In recent years, this antisemitism has only increased. In the Anti-Defamation League's (ADL's) 2014 poll, "An Index on Antisemitism," over one billion people were shown to have antisemitic views. [1] International law has a role to play to combat this hate. To curb the amount of racism and hatred across the globe, hate speech should be criminalized under international law. At the very least, reservations to the International Covenant on Civil and Political Rights (ICCPR) should not be allowed as they violate Articles 19 and 20 of the Vienna Convention on the Law of Treaties.

Under ICCPR Article 19, freedom of expression is guaranteed to all individuals.[2] However, international law does treat hate speech differently as it prohibits incitement to genocide. International law asks states to criminalize hate speech. While it is not a requirement or jus cogens rule, it is encouraged.

In the 2014 poll, discouraging attitudes and beliefs regarding the Jewish people were found across more than 100 countries. For instance, 35% of people have never heard of the Holocaust[3]. Additionally, 41% believe that Jews are more loyal to Israel than their own country[4]. A different poll was taken in 2018 that found that 80% of European Jews feel that antisemitism has been on the rise over the previous five years, and 40% live in fear of being physically attacked[5].

Currently, hate speech like antisemitism can be limited if it is designed to attack groups to the point that they feel humiliated, dehumanized, etc. This kind of speech can also be criminalized, but three criteria must be met. First, the limitation must be legal; it must be provided for by law. Second, the law must have a legitimate aim. Finally, the law must be necessary and proportional to achieve the legislature's goal. However, as international law does not itself prohibit offensive speech, it is technically allowed.

The international community should seek to criminalize hate speech in the same manner as in Faurisson v. France.[6] This case examined the legality of criminalizing hate speech, namely antisemitism. The Court held that only the most heinous speech could be restricted.[7] Faurisson, a French professor, was notorious for espousing Holocaust denial theories, and[8] France adopted legislation criminalizing such denial.[9] Faurisson was fined and brought suit, claiming that a state cannot restrict an individual's freedom of expression.[10] The court held that France was able to restrict the expression of Faurisson as it met the three necessary criteria: there was an act passed by the legislature criminalizing the speech in question, the law did have a legitimate aim as Holocaust denial finds its roots in antisemitism which, in the past, has led to tragic consequences, and that the fine was proportional and necessary.[11]

While Faurisson shows how the international community is allowed to criminalize hate speech in service of the ICCPR, several countries, including the United States, have signed on to the covenant with reservations that contradict the treaty's purpose.[12] A reservation made by a state when ratifying a treaty seeks to exclude or modify the legal effect of certain provisions of the treaty.[13] However, in the ICJ Advisory Opinion on Reservations to the Genocide Convention, the Court held that Article 19 of the Vienna Convention permits reservations to general multilateral treaties unless the treaty expressly or impliedly prohibits reservations or those sought are incompatible with the object and purpose of the treaty.[14]

Reservations like the United States that allow hate speech goes against the object and purpose of the ICCPR and should not be maintained. Articles 19 and 20 are meant to restrict speech where it might constrain others' freedom, and reservations that allow the legal espousal of hate speech exclude this purpose. While some might argue that the purpose of such a reservation is freedom of speech, the ICCPR is intended to protect the rights of marginalized individuals and groups from hate speech as well as guarantee their freedom of expression, and these reservations explicitly go against that protection.

Ross Jablon is a staff member of Fordham International Law Journal Volume XLV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See Antisemitism Globally, https://www.adl.org/what-we-do/anti-semitism/antisemitism-globally (last visited Mar. 22, 2022)

[2] International Covenant on Civil and Political Rights, art. 19(2),  opened for signature Dec, 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976). [hereinafter “ICCPR”].

[3] See id. (note 1)

[4] See id.

[5] See id.

[6] Faurisson v. France (No. 550/1993), UN Doc. CCPR/C/58/D/550/1993 (1996)

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See id.

[12] See U.S. Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., Apr. 2, 1992).

[13] See Vienna Convention on the Law of Treaties art. 2(1)(d) (May 23, 1969), 8 I.L.M. 679, 681

[14] See Reservations to Convention on Prevention and Punishment of Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15 (May 28).