Futureproofing Human Rights Symposium: Insulting Language as Ground for Inadmissibility – Thin-Skinned Accountability?

[Lisa Reinsberg is the founding executive director of the International Justice Resource Center, a PhD candidate with the Grotius Centre for International Legal Studies at Leiden University, and a Lecturer at the University of California, Berkeley School of Law]

Human rights oversight bodies have rejected an unknown number of complaints because individual complainants used language that was insulting or offensive to the human rights body that received them, or to the State against which they were presented. These individuals were pursuing accountability for alleged violations of their rights – by the State responsible for protecting them –  in a process established for that purpose under the auspices of the United Nations or a regional international organization. A prim insistence on propriety may seem out of step in this context, but it also raises more fundamental questions on why and how a prohibition on insulting language has been implemented. This post summarizes the origins of this evolving admissibility requirement, before addressing a set of concerns tied to its legitimacy, fairness, and relation to accountability for human rights violations.

Textual Origins of the Prohibition on Offensive Language

Admissibility criteria famously prevent United Nations and regional oversight bodies from deciding most individual human rights complaints on the merits (for example, the European Court of Human Rights determined that around 90% of applications were inadmissible in 2024). Several of these criteria remain unclear, including because so many admissibility-related decisions are made out of public view in the very initial stage of a complaint proceeding. The prohibition on insulting or abusive language stands out as particularly capricious because it is aimed neither at enforcing subsidiarity nor jurisdictional limits, nor at the efficient use of resources. Moreover, it is a criterion that mostly lacks a clear textual basis in the relevant treaties and rules. 

The prohibition on offensive language has evolved along two paths. The first is tied to the European Convention on Human Rights, which requires a complaint to be declared inadmissible if the Court considers it “an abuse of the right of individual application.” Beginning in at least 1965, the European Commission on Human Rights interpreted this provision to allow it to reject complaints if the applicant used “abusive,” “provocative,” “insulting,” or “defamatory” language; the Strasbourg Court has continued with this interpretation.

The Organization of African Unity (predecessor to the African Union) is responsible for the second iteration. In adopting the African Charter on Human and Peoples’ Rights in 1981, per Article 56(3), it required the African Commission to reject any communication “written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity.” The Protocol establishing the newer African Court on Human and Peoples’ Rights imposes the same requirement on it.

Other human rights bodies have largely avoided this admissibility question, opting to base rejections on other grounds or to disregard States’ allegations of offensive language. Notably, the UN human rights treaty bodies’ founding instruments contain the same prohibition on abuse of the right of submission as seen in the ECHR. While the treaty bodies themselves have thus far declined to apply this provision to reject a communication due to offensive language (at least in published views), some decisions – in addition to guidance from the Office of the High Commissioner for Human Rights – indicate they may do so. Similarly, the Human Rights Council has adopted a criterion that individual communications to special procedure mandate holders should not contain “abusive” language. For their part, the Inter-American Court of Human Rights and its counterpart Commission must reject complaints that are “obviously out of order,” but neither body has addressed offensive language under this provision in any published decision.

An Imprecise Standard

In either of these iterations, the prohibition on abusive language is arguably vague and overbroad on its face; it incorporates no definition or test for determining when language is abusive or “insulting,” and the objective truth of the statement is not a factor. In its application, the imprecision of this rule becomes even more apparent, despite the ECtHR’s insistence that it only prohibits remarks that go beyond “the bounds of normal, civil and legitimate criticism” and the African Court’s reliance on the dictionary to define “disparaging” and “insulting” language. Examples of language deemed to cross the line include: referring to the Cameroonian government as a “regime of torturers,” characterizing Czech authorities as “communist thieves,” writing that Serbia’s argument could only have been prepared by an “idiot,” and describing an Italian representative’s arguments as self-interested and petty. Particularly in the context of human rights bodies handling complaints against more than 40 States, each with their own particular social and linguistic norms, can there be a common understanding of what is excessively insulting? 

Additionally, the procedural moment and context in which this standard may be applied are unclear. While the African bodies have limited its application to written submissions accompanying the initial complaint, the European Court has considered admissibility based on language in submissions made after the complaint or outside of the proceedings – such as in the case of disparaging comments made on social media platforms.

A Double Standard

Only individual complainants and their representatives are punished for insulting language, not States. A government’s representative could use identical language to refer to a complainant, or take part in the global trend of stigmatizing human rights defenders or labeling them terrorists, without procedural repercussions. In addition, the consequence of failing to meet this requirement is rejection of the individual’s complaint in its entirety. As only complainants must comply with admissibility requirements, the State can never be sanctioned in a similar manner      (and this prohibition does not apply to inter-State complaint proceedings).

The prohibition on insulting language can be seen as a matter of inequity, as well as inequality; it ignores the power differential between an individual and the State, in addition to applying to only one party to the dispute. Individuals are generally in a weaker position of power than the State allegedly responsible for violating their rights. This is true with respect to the resources at their disposal, their capacity to counter or deflect any criticism, and their ability to impact quality of life for the other party. Some complainants initiate proceedings without legal representation, meaning their familiarity with the requirements and expectations may be limited. 

Punishing complainants’ offensive words without considering these factors could be seen as an excessive display of power or insistence on deference to authority. When considered in the context of a proceeding intended to determine State responsibility for alleged abuses, and which is used by individuals to secure some measure of recognition and vindication of their rights and dignity, conditioning access on unilateral politeness undermines the very notion of accountability for rights violations. Indeed, States have gone out of their way to notify the ECtHR (and the Committee Against Torture) of an applicant’s offensive language in the hopes the complaint will be dismissed. This double standard creates the impression that access to justice at the international level is a privilege, rather than a right, and that accountability can be evaded.

A Disproportionate Restriction

The European Court and African bodies take different views on the relevance of individual rights when applying the prohibition on insulting language. The European Court does not weigh any countervailing interest, legal principle, or human rights standard in deciding to reject a complaint on this basis. Rather, it has relied solely on the purported need to protect itself and its Member States from reputational damage, but without engaging in any particular analysis to determine whether the feared reputational harm is likely, based on false statements, or intentional. Though it allows individuals to avoid rejection of their complaints if they apologize and retract the offending language, this does nothing to incorporate a human rights analysis or sense of proportion into the decision making.

In contrast, the African Court and Commission have developed a more recent approach of “bearing in mind” the individual’s right to freedom of expression, when seeking a balance between respecting individual rights and shielding authorities “from wanton attack.” However, the African bodies have yet to apply this approach in a case involving language they agree is actually insulting or disparaging. Neither regional system has considered whether rejecting a complaint on this basis could contravene due process standards or access to justice principles. 

In failing to consider whether cutting off access to a human rights complaint procedure is proportionate to the aim of protecting institutional reputations, either approach risks running afoul of international standards on both freedom of expression and access to court. Any analysis of proportionality would likely reveal a serious logical flaw: by adopting and publishing an inadmissibility decision detailing a complainant’s insults, it is the Court (or Commission) itself that publicizes the offensive remarks, which would otherwise remain out of public view in almost all instances. This lack of necessity is also underscored by the fact that human rights bodies could opt to simply strike the offending language, a power the European Court has included in its rules with respect to parties’ representatives.     

When rejecting a complaint because of offensive language, these mechanisms are declining to hold themselves and States to international human rights standards. Not only may the human rights body allow a State to avoid the consequences of a possible violation of its treaty obligations, but it may do so in a manner that contravenes the substantive and procedural standards its own decisions flesh out. 

An Abuse of Authority?

States have clearly mandated the African human rights bodies to reject complaints using insulting or defamatory language, but the same cannot be said of other mechanisms. In view of the fact that the European Court, in particular, has claimed this power on the basis of the prohibition on “abuse of the right of application,” does it exceed that express authority? If so, is there a convincing argument that the Court has an inherent power to punish insulting language in this way?

Turning first to the notion of “abuse of the right” of petition, other international courts and tribunals have interpreted this concept to cover attempts to game a complaint proceeding through manipulation, deception, or misuse. The European Court appears to be unique in classifying insulting language as an abuse of process.

Courts have long asserted the authority to sanction disruptive, frivolous, or abusive behavior – whether based on an implied or inherent power or pursuant to a general principle. For example, many domestic legal systems recognize the notion of contempt of court, according to which an individual may be punished or admonished for disrupting courtroom proceedings or disobeying a judicial order. Exercise of this authority has become a surprisingly prominent feature of international criminal tribunals, as well. In such cases, courts are seeking to stop or deter conduct that frustrates or contaminates their work.

However, the context, purpose, and consequences are distinct with respect to sanctioning human rights complainants’ offensive language. It is difficult to conceive of a situation in which an individual’s insulting written characterizations could cause disorder or delay, or undermine a human rights body’s ability to secure compliance with its decisions. More importantly, the resulting sanction, unlike in domestic contempt proceedings, is that the individual’s legal claim will not be considered; justice and accountability are foreclosed. In a legal framework dedicated to the respect of individual rights, such an outcome should be questioned. 

Fair and consistent accountability for alleged human rights violations requires oversight mechanisms with thick skin. Should human rights mechanisms decide (or be required) to address complainants’ word choice, they should: 1) apply a clear and consistent standard for determining when language is excessively offensive; 2) apply the proportionality test to ensure that any response meets human rights standards; and, 3) limit possible consequences to sanctions that do not foreclose the possibility of accountability, such as by striking the offending language. As the ECtHR’s own jurisprudence makes clear, preserving the authority and legitimacy of public institutions is important, but cannot excessively restrict individual rights nor undermine accountability for rights abuses. Moreover, when human rights mechanisms respond harshly to criticism, they may do greater harm to public perceptions of their authority and legitimacy than if they simply refuse to allow insults to get under their skin.