Abstract
In 2016, the icty Trial Chamber found one of the greatest hate and fear propagandists of the Yugoslav wars, Dr Vojislav Šešelj, not guilty on all counts of the indictment. A full comprehension of the role the propaganda played was lost and the partial reversal of the judgment at the Appeals Chamber provided little improvement in this regard. Yet the blame does not solely rest with the Chambers but also with the Prosecution and an utterly fragmented law applicable to hate and fear propaganda. This article looks in depth at the Šešelj case in order to highlight the many hurdles to effective prosecution, some specific to the case and others symptomatic generally of propaganda trials. It then takes a multi-disciplinary approach in presenting the nature of hate and fear propaganda to suggest a broader way of looking at causality as well as to argue for reform of the current applicable law.
Highlights
Propaganda, in its various forms and manifestations, is as old as recorded history, and its philosophical origins can be traced back to ancient Greece.[2]
There is no doubt that limiting speech or even assigning criminality to any form of expression should be approached with utmost caution, even when the speech is unpleasant
Social research can methodically distinguish between speech that may be merely repugnant but is generally harmless and the types of speech that are known to elevate the risk of criminal acts in a statistically significant manner
Summary
Propaganda, in its various forms and manifestations, is as old as recorded history, and its philosophical origins can be traced back to ancient Greece.[2]. In his Report on Hate Speech and Incitement to Hatred he defined hate as ‘a state of mind characterized as intense and irrational emotions of opprobrium, enmity and detestation towards the target group’. 54 UN Human Rights Council, Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, (A/HRC/39/CRP.2) 17 September 2018, noting that ‘The Myanmar authorities, including the Government and the Tatmadaw, have fostered a climate in which hate speech thrives, human rights violations are legitimized, and incitement to discrimination and violence facilitated’. Judgments that have dared to include it into the criminalisation of hate speech outside strict incitement and instigation have been reversed in later jurisprudence
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