Abstract

Even though there is extensive legal literature on the culpability of authors of hate speech that results in mass atrocities, it remains indisputable that the prosecution of hate speech in international criminal tribunals is still riddled with legal complexities. The recent decision of the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia in the case of Prosecutor v Vojislav Šešelj (Trial Chamber III) IT-03-67-T (31 March 2016) (“Šešelj”) brings to life the view that we are not only getting deeper in the legal maze but far from laying this issue to eternal rest. The decision to acquit the accused because of the prosecution’s failure to prove beyond reasonable doubt that his speeches had led to the atrocities for which he was charged, evoked the element of causation. In application, that view would resonate squarely with the “but for” test which is one of the pillars of the element of causation in criminal law. Steering away from a doctrinal discussion of the merits of the “but for test”, this contribution critiques the Trial Chamber’s judgment in the Šešelj case: taking an evidence-based approach that examines the culpability for hate speech prior to the Šešelj decision, the contribution explores the underlying theoretical and jurisprudential flaws in the Šešelj judgment.