Legal Framework: An International Human Rights Approach to Addressing Hate Speech and Protecting Free Expression in Myanmar is not a breach of article 20, paragraph 2, of the Covenant on its own. Such advocacy becomes an offence only when it also constitutes incitement to discrimination, hostility or violence; in other words, when the speaker seeks to provoke reactions (per- locutionary acts) on the part of the audience, and there is a very close link between the expression and the resulting risk of discrimination, hostility or violence. In this regard, context is central to the determination of whether or not a given expression constitutes incitement.596 Incitement can be targeted at individuals or groups based on wide range of grounds, including those put forth by the local groups in their definition of hate speech for this report.597 To address the most extreme form of hate, international law prohibits and criminalizes “direct and public incitement to commit genocide,” which is articulated in Article III(c) of the Genocide Convention.598 Article II of the Genocide Convention defines genocide as acts “committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group” such as killing or causing serious bodily or mental harm to members of the group.599 Article V imposes an obligation on the Contracting Parties like Myanmar to uphold its duty to prevent and punish genocide.600 As freedom of expression is a fundamental right, any criminalization of hate speech must be narrowly crafted under human rights law. The Rabat Plan of Action lays out six factors on whether particular speech may rise to the level of incitement, which can be criminalized:601 1. Context: “Analysis of the context should place the speech act within the social and political context prevalent at the time the speech was made and disseminated” in assessing whether the speech in question is likely to incite discrimination, hostility and violence.602 2. Speaker: Consider “the speaker’s position or status” in relation to the “audience to whom the speech is direct.”603 3. Intent: The pertinent international legal standard “anticipates intent” as the standard provides for “advocacy” and “incitement,” rather than “mere distribution or circulation of material”; therefore, more is required than recklessness or negligence.604 Rabat also notes there is a “tri- angular relationship between the object and subject of the speech act as well as the audience.”605 4. Content and form: “Content analysis may include the degree to which the speech was provocative and direct, as well as the form, style, nature of arguments deployed in the speech 596 597 598 599 600 601 602 603 604 605 606 or the balance struck between arguments deployed.”606 A/66/290, para. 28 (footnotes omitted). A/74/486, para. 9. Genocide Convention, art. III(c). See also A/66/290, para. 23 (also citing similar prohibitions under “article 25, 3 (e), of the Rome Statute of the International Criminal Court, article 4, 3 (c), of the statute of the International Tribunal for the Former Yugoslavia, and article 2, 3 (c), of the statute of the International Criminal Tribunal for Rwanda.”). Genocide Convention, art. II. Genocide Convention, art. V. Rabat Plan of Action, para. 29. Ibid., para. 29(b). Ibid. Ibid., para. 29(c). Ibid. Ibid., para. 29(d). 91