How to Regulate Hate Speech under International Law: One Step Further on the ICT-BD’s Ban On Hasina’s Speech

1. Introduction

On December 5th, 2024, after hearing arguments on domestic and international laws concerning “hate speech”, the International Crimes Tribunal of Bangladesh (ICT-BD) issued an order to remove and restrict all types of hate speech and incitement by the ousted prime minister, Sheikh Hasina (BSS, 2024; Tribune Desk, 2025),  in which she accused the current interim government of committing genocide and not protecting minorities. The prosecutor of the ICT-BD, Golam Monawar Hossain, explained that Hasina’s hate speech “could hinder legal proceedings or intimidate witnesses and victims” and made it “difficult to bring witnesses to the tribunal” (Agence France-Presse, 2024). Prosecutors also claimed that the restriction and ban were only imposed on Hasina’s hate speech that met the criteria in Rabat Principles rather than all her political statements (BSS, 2024). However, this ban on speech and corresponding clarification raised questions about which authority determines whether speech qualifies as hate speech, and what the definition and standards of “hate speech” are (Agence France-Presse, 2024).

The argument about the ICT-BD’s ban on Hasina’s alleged hate speech gives rise to a long-lasting debate on international accountability for hate speech crimes. Hate speech can escalate internal strife and constitute an early sign of mass atrocities, thus showing the necessity of criminalising it. Nevertheless, the inconsistent definition of hate speech and the ambiguous line between the restriction of hate speech and freedom of expression makes it more challenging to determine the responsibility of different subjects for hate speech.

Therefore, this article aims to dissect how international law regulates hate speech from the perspectives of state and individual responsibility. Although this article does not intend to draw a concrete conclusion on whether Hasina’s speech constitutes hate speech, with the analysis of international crimes and human rights protection in the context of Bangladesh, this article will outline the deficiency in regulating hate speech.

2. State Obligations: Prohibition of Hate Speech vs Protection of Freedom of Expression

Hate speech lacks a unified definition, leading to debates about what constitutes hate speech and the extent to which certain expressions cross the line between freedom of speech and the restrictions imposed on hate speech. For example, Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) provides a list of speech acts punishable by law, including dissemination of ideas based on racial superiority and racial hatred, incitement to racial discrimination, and incitement to acts of racially motivated violence (Mendel, 2006).

However, this list is non-exhaustive and mainly focused on racial discrimination relevant to preventive measures for genocide, so it does not offer much assistance in the elaboration on the constituent element of hate speech per se, and it fails to clarify the nexus between hate speech and the right to freedom of expression (Mendel, 2006). The International Covenant on Civil and Political Rights (ICCPR) provides much clearer instructions about hate speech and freedom of expression for states. With further demonstrations outlined by the Rabat Plan of Action, the ICCPR has become the predominant international human rights instrument instructing the state to regulate hate speech without overly restricting the right to freedom of expression (United Nations, 2013). 

Although Article 20(2) of the ICCPR does not explicitly use the term “hate speech”, when read in line with the Rabat Plan, hate speech can be defined as any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence, which shall be prohibited by laws (United Nations, 1966; United Nations, 2013). 

However, this provision only provides general instructions for each state. States may choose to implement a comparatively broad or narrow definition of hate speech or incitement to hatred into their domestic legislation, making it more arbitrary during application and enforcement or leading to the misinterpretation of the prohibition of hate speech and the subsequent adoption of additional restrictions to freedom of speech. Therefore, the Rabat Plan also intends to resolve these issues by providing a clear and high threshold for hate speech, which was also recognised and accepted by the prosecutors of the ICT-BD, as mentioned above.

To avoid the over-interference of freedom of speech and determine a clear standard for hate speech, speeches that potentially constitute incitement to discrimination, hostility, or violence can be divided into three categories: speech constituting a criminal offence, speech only justifying a civil suit or administrative sanctions, and speech not giving rise to any legal consequences but merely concerns in terms of tolerance, civility, and respect for the rights of others (United Nations, 2013). In conjunction with Articles 18 and 19 of the ICCPR, the state needs to follow strict requirements to assess whether the speech violates the rights or reputation of others, national security, public order, public health, or morals (United Nations, 1966).

Since the restrictions on hate speech are also within the scope of the derogation or restriction of rights under international human rights law, the general three-part test of legality, proportionality, and necessity should be evaluated to determine whether a speech is hate speech. Should a statement qualify as such, it shall be excluded from the protection of freedom of speech and give rise to responsibility and legal consequences under either criminal, civil, or administrative law (United Nations, 2013). To be more specific, the Rabat Plan proposed a six-part threshold test for expressions considered as criminal offences, in particular:

(1) the social and political context, (2) status of the speaker, (3) intent to incite the audience against a target group, (4) content and form of the speech, (5) extent of its dissemination and (6) likelihood of harm, including imminence. (United Nations Office of the High Commissioner for Human Rights, n.d.).

In this regard, states are obliged to take measures to prevent and combat hate speech in line with international human rights standards for the restriction of hate speech and the protection of freedom of speech, including but not limited to legislating, prosecuting, and punishing hate speech. However, when looking into specific legal applications and enforcement  for  the prohibition of hate speech and the imposition of corresponding (criminal) responsibility, the constituent elements of hate speech crime also confront various arguments and controversies. Moreover, the ban issued by the ICT-BD, the tribunal to deal with international crimes in Bangladesh, raises questions about whether the alleged hate speech can also constitute or contribute to international crimes. In light of this, the next section will analyse hate speech crimes and corresponding individual responsibility in international criminal law.

3. Individual Responsibility: How Hate Speech Constitutes International Crimes

3.1 Direct and Public Incitement to Commit Genocide

Direct and public incitement to genocide has been established as one of the acts under Article 3 of the Genocide Convention and Article 25(3)(e) of the Rome Statute. According to provisions and case law, subjective and objective elements can be observed. For actus reus, incitement is restricted within a limited scope of being both public and direct.

Public incitement means that all the speeches should be conducted in a public place or to members of the general public at large, particularly by using methods of mass communication such as radio, television, and online social platforms (Triffterer & Ambos, 2016). Direct incitement means the provocation should be concrete or specific enough to take immediate criminal action rather than just a vague suggestion (ICTR, 1998). The directness may depend on the cultural and linguistic context, indicating that as long as the audience specific to those circumstances can understand the instruction of the inciter, certain degrees of metaphor and ambiguity in language are accepted (ICTR, 2003; ICTR, 1998). 

For mens rea, the requirement of dolus specialis under the crime of genocide is also applied to public and direct incitement. This means that the perpetrator is not only required to have the intent to directly prompt or provoke another to commit genocide but also embrace the special intent to destroy the targeted group in whole or in part (Triffterer & Ambos, 2016). As stated by Prosecutor v. Nahimana et al., in which the court specifically differentiated the public and direct incitement to commit genocide with purely hate speech, only the most extreme form of hate speech revealing a clear instruction or incitement to violence or crimes can meet these requirements (ICTR, 2003). 

In this regard, even if it is an inchoate crime committed without the actual commission of the principal crime of genocide, the high threshold of both subjective and objective elements will limit the scope of hate speech within this case. However, as the form of incitement is only applicable to genocide, it raises further controversies about how to deal with incitements, neither public nor direct enough, to other international crimes. Against this backdrop, this article will now turn to practices of hate speech which do not amount to the commission of direct and public incitement to commit genocide.

3.2 Crimes Against Humanity: Persecution

Much hate speech falls short of the context of genocide, yet it may still participate in the persecution of civilian populations. Articles 7(1)(h) and 7(2)(g) of the Rome Statute stipulate that persecution means, “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”, which leaves an open-ended provision to include hate speech. However, the constituent elements have particularly become an issue in determining hate speech as persecution, as reflected in Prosecutor v. Vojislav Šešelj and the Nahimana case.

First, the definition of hate speech in international jurisprudence is not always clear and appropriate. In the Nahimana case, the chamber defined hate speech as “stereotyping of ethnicity combined with its denigration” (ICTR, 2003). However, this definition was criticised for being so vague that even the tribunal itself did not recognise certain stereotypical and derogatory words as hate speech (Mendel, 2006). The chamber then further elaborated the definition in the context of persecution, which requires the deprivation of fundamental rights, stating that hate speech is 

a discriminatory form of aggression that destroys the dignity of those in the group under attack […] on the basis of their ethnic identity or other group membership in and of itself, as well as in its other consequences […] (ICTR, 2003). 

However, this definition did not distinguish between criminalised hate speech and freedom of expression. Although one may argue that the form and content of hate speech can hardly be concrete with the variation of the culture and context, due to the lack of practice and clear definition, there is no clear guidance as to whether hate speech in the context of persecution, namely incitement to discrimination, hostility, or violence should be criminalised or otherwise sanctioned in international criminal law (Fino, 2020).

Moreover, the degree and forms of hate speech as persecution are also ambiguous. In the Seselj case, the chamber claimed that, in order to constitute persecution, the speech should not only indicate a “clear appeal for the expulsion of Croats from the village” but must also violate the right to security and the right to respect for dignity as human beings (MICT, 2018). This requirement addressed the gravity of the criminalised hate speech amounting to the actus reus of persecution (Timmermann, 2019). However, the chamber failed to clarify the specific content of this right to respect for dignity as human beings and how speeches could violate it. Additionally, different from the incitement to genocide, the Seselj case went beyond the Nahimana case, recognising that hate speech without a call for violence or immediate crimes can also constitute persecution (Badar & Florijančič, 2019). Nevertheless, without clarifying whether the incitement to only discrimination without any provocation of violent acts and the incitement to violence in the absence of any discrimination can also be taken into account, this potentially leads to an overly broad scope of hate speech under crimes against humanity (Fino, 2020; Timmermann, 2019). 

A concrete conclusion of when hate speech should be criminalised as persecution, a form of crime against humanity, is hard to make. Although the contextual element of crimes against humanity, the required violation of a fundamental right sufficiently meeting the gravity, and the discriminatory nature of speeches based on the identity or membership in and of itself can decide a general scope of hate speech in the context of persecution, it still requires a case-by-case assessment of whether the speech in question can constitute the criminalised incitement under crimes against humanity.

3.3 Speech Charged as a Contribution to International Crimes: Modes of Liability

Apart from the direct commission of the above speech crimes, hate speech can also contribute to international crimes as accessorial participation and give rise to secondary individual responsibility under Article 25(3)(b)-(d) of the Rome Statute: solicitation or inducement, aiding and abetting, and conducting with a common purpose. Among these modes of liability, instigation, or solicitation or inducement in the Rome Statute can be applied to hate speech. The Rome Statute defines these modes of liability as  “factor[s] substantially contributing to the conduct of another person committing a crime” with “the awareness of the substantial likelihood that a crime will be committed in the execution of the instigation” (Fino, 2020).

As opposed to the public and direct incitement to commit genocide under Article 25(3)(e) of the Rome Statute, instigation is a mode of liability rather than an inchoate crime, requiring the actual commission of the principal crime. Through the actus reus and mens rea, instigation de facto does not establish any restriction on the forms or content of speech, which allows the possibility that all hate speech can constitute instigation. However, the constituent elements and the nature of modes of liability reveal another threshold to exclude hate speech that is not contributive or direct enough in an international crime, in other words, there must be a causal connection.

While it requires a substantial contribution of the instigation to the principal or direct commission of the relevant international crime, this issue highlights the long-lasting dilemma in international criminal law, where the approach and standard to prove each degree of causation are blurry. For example, in the Seselj case, the chamber applied discrimination, temporal connection, and the specific impact of the speech to prove the causal link. According to the chamber, the accused’s speech was presented before a large audience, and his position and the place of speech resulted in swift dissemination (MICT, 2018; ICTY, 2016).

Following the speech of expulsion, subsequent forced displacement occurred within three weeks. In this case, the chamber regarded the displacement as a consecutive consequence of the speech (MICT, 2018; ICTY, 2016). However, this reasoning is far from clear or specific. Critics have noted that the interpretation of “being substantial” is too arbitrary to give clear instructions on the contribution of speech (Fino, 2020). Especially when one of the most significant distinctions among different modes of liability depends on the degree of contribution, the vague standard and interpretation of “being substantial” failed to attribute each hate speech to its right place: whether the speech suffices co-perpetration (essential contribution), instigation and aiding or abetting (substantial contribution), or conducting criminal acts with common purpose (significant contribution) (Lawson & Bartels, 2019).

Therefore, how and to what degree hate speech can contribute to the commission of an international crime and give rise to individual criminal responsibility is not always clear. The blurry line between each mode of liability due to the vague standards of causation can also impact the imposition of individual criminal responsibility for hate speech, which may lead to inappropriate legal characterisation of the hate speech or an overly broad restriction on speech in mass atrocities. Based on the analysis of the criminality and responsibility for hate speech, this article will now outline the specific deficiency in regulating hate speech in Bangladesh.

4. Deficiency in Combatting Hate Speech in the Context of Bangladesh: An Analysis of the Ban on Hasina’s Speech

Although the ban issued by the ICT-BD on Hasina’s speech has not reached the sphere of criminal responsibility, it still exposes issues concerning the regulations of hate speech: (1) the ambiguous distinction between hate speech and the right to freedom of speech following the international standard; (2) a loophole in criminalising hate speech under both international and domestic criminal law.

In the case of Hasina’s speech, the prosecutor reasoned that her speech might negatively affect the presence of victims and witnesses. Nevertheless, the reasoning is not complete enough. As a contracting party of both the ICCPR and the CERD, Bangladesh is not only obliged to prevent and punish certain (hate) speech, but also required to protect the freedom of speech and restrict the right only when necessary under the laws. Although the prosecutors addressed the application of the Rabat Principles, the ICT-BD did not provide a detailed assessment based on the legality, necessity, and proportionality of the restriction on Hasina’s speech.

One may argue that her speech increased victims’ fear, which can be considered a violation of public interest under Article 19 of the ICCPR. However, such an allegation can hardly meet the six-part threshold test, particularly when assessing the intent to incite the audience against a target group and the likelihood of harm, including imminence. As Bangladesh neither clarifies a standard for hate speech in domestic law nor applies the international human rights standard through more convincing and comprehensive practice, this can easily lead to the arbitrary restriction on the alleged hate speech, violating freedom of speech (Shields & Forbes, 2023). Statistics revealed that, in 2017, there were 335 violations of the right to freedom of expression, and 70 percent of violations were against journalists working at the grassroots level (Article 19, 2018). With Bangladesh constantly criticised for extensively restricting freedom of speech and utilising such restrictions to “silence political opponents, persecute apostates, atheists, and minorities, and justify violence” (Shuddhashar, 2025), the ICT-BD should be more cautious about the determination of hate speech and keep the balance between the freedom and restriction of speech. 

Moving one step further, another question is whether international and domestic criminal law can support the ban issued by the ICT-BD and provide legal resources for the criminalisation of hate speech not only for Hasina’s speech in question but also for all the hate speech in international crimes in Bangladesh. Although the analysis of international provisions and jurisprudence indicated many ambiguities in the provisions concerning speech crimes, it is not hard to observe that all crimes and modes of liability have stricter thresholds than the Rabat Principles.

However, it is unfortunate that the ICTA does not include any explicit provisions concerning speech crimes nor fill the loopholes in international criminal laws. Contrary to the proposal to extend the incitement to all international crimes, the incitement disappeared. In some cases, such as Chief Prosecutor v. Md. Abdul Alim, public and direct incitement to commit genocide has been mentioned. Yet, this was only a mimic of international jurisprudence in the ad hoc tribunals without clarifying why the incitement is missing in the ICTA and how to deal with speech crimes confronting the blank in legislation. Moreover, the chaotic structure of Article 3(2)(g)-(h) mixing modes of liability and inchoate crimes further hinders the regulation of hate speech through the prevention of accessorial participation and the imposition of modes of liability (Billah & Hartini Saripan, 2024). When the crime of genocide in the ICTA includes the political group as one of the protected groups, political statements against other parties can directly or indirectly contribute to the commission of crimes  more easily. 

Domestic laws in Bangladesh are also limited. Some provisions such as Section 153A of the Penal Code and the Digital Technology Act impose different degrees of punishment for promoting hatred between religions or classes. Yet, the ambiguous standard and determination of alleged hate speech has been criticised for its potential to be misused in pursuit of political aims by the Bangladeshi government (Shields & Forbes, 2023). Meanwhile, as a state composed of a majority of Muslims, religious minorities are more likely to become subject to accusations of blasphemy against Islam (United Nations, 2013; Shields & Forbes, 2023). The discriminatory law enforcement and the hardship in prosecuting and proving hate speech in domestic law prevent the judicial procedures for “real” hate speech. There were 396 cases of “speech offences” under trial during the rule of the AL government, of which 332 have already been withdrawn (The Daily Star, 2025).

5. Conclusion

In conclusion, the ban on Hasina’s speech gives rise to the discussion of international legal frameworks concerning hate speech and prompts to consider whether the ICT-BD should be more cautious about the restriction on the alleged hate speech. The ICCPR and the Rabat Plan together address the obligation of the state to restrict hate speech, ensure freedom of speech, and provide instruction on high thresholds for such restrictions.

Similarly, under international criminal laws, based on the context and contributive degrees of hate speech, international jurisprudence and provisions provide instructions on certain types of speech crimes or participation in crimes. The loopholes in international criminal laws, such as the vague standard for the contribution and the inconsistent definition of hate speech, remain unresolved in the context of Bangladesh. The imbalance between hate speech and freedom of expression becomes even worse due to the lack of clear legislation, the long-lasting suppression of free speech, and the blasphemy law. 

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