Examples of harmful speech, popularly known as hate speech, have more recently found their way on the docket of both the International Court of Justice (ICJ) and the International Criminal Court (ICC). In parallel with, and as a reaction to the rise of harmful speech in society, there is a louder call to criminalise it. This trend for criminalisation is reflected, to varying extents, in different specialised regimes of international law, including international criminal (ICL), international human rights (IHRL), and international humanitarian law (IHL) (collectively, the ‘three regimes’). Indeed, ICL, IHRL, and IHL have adopted a different typology to describe the same social phenomenon of harmful speech, often interchangeably referred to, for instance, as speech crime, hate crime, atrocity speech, hate speech, dangerous speech, and incitement. In practice, this may mean that the ICJ and the ICC, called to rule, for instance, in the Myanmar and Gaza conflicts, assess and define what harmful speech is and whether it constitutes a breach of international law differently, thus leading to legal unpredictability and fragmentation.

This thesis of Aubrey Fino thus attempts to fill this doctrinal and practical lacuna in the law and answer the following normative research question: Based on a comparative analysis of the law and practice of ICL, IHRL, and IHL, to what extent is an integrated definition of harmful speech feasible and how could it be formulated?

While noting the three regimes’ intrinsic and definitional differences, the thesis considers that they need not preclude one from reaching an integrated definition of harmful speech generally, and criminal harmful speech in particular. Their differences may be reconciled by building on what unites the three regimes, namely, their methodology, their substantive law overlaps, and the priority they all give to ius cogens and erga omnes norms. Based on common benchmarks, the thesis proposes an integrated definition of harmful speech and its more serious form, criminal harmful speech to be used across the three regimes.

Fino defended her thesis on Februari 6th 2025 at the Law department of Groningen University. The supervisors were prof. John Morijn and prof. Caroline Fournet, University of Exeter.

Aubrey Fino
Harmful speech in international law.Towards an Integrated Definition in International Criminal, Human Rights, and Humanitarian Law

The dissertation is available at the repository of the Rijksuniversiteit Groningen