P a g e| 1PROHIBITION OF INCITEMENT TO NATIONAL, RACIAL OR RELIGIOUS HATRED IN ACCORDANCE WITH INTERNATIONAL HUMAN RIGHTS LAWEXPERT SEMINAR FOR THE EUROPEAN REGION, 9 and 10 Febrar! "011Na#re and $ean% &' e''e(#)*e re$ed)e%Nazila GhaneaT+e &b,e(#)*e &' re$ed)e%The strikingly different characteristic of human rights law from other bodies of international law is precisely the fact that it stipulates that obligations are owed directly to individuals (and not to the national government of an individual) and it provides! increasingly! for individuals to have access to tribunals and fora for the effective guarantee of those obligations"# The right to access an effective remedy safeguards en$oyment of human rights" %s Nowak has argued The very notion of human rights implies that rights&holders must have some possibility to hold duty bearers accountable for not living up to their legally binding human rights obligations"' This is upheld in %rticle '(() of the )nternational *ovenant on *ivil and +olitical ,ights which re-uires that .tates +arties undertake/(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy! notwithstanding that the violation has been committed by persons acting in an official capacity (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent $udicial! administrative or legislative authorities! or by any other competent authority provided for by the legal system of the .tate! and to develop the possibilities of $udicial remedy (c) To ensure that the competent authorities shall enforce such remedies when granted" 0aving a remedy! determined by law! which is enforceable 1 these are necessary steps to the en$oyment of human rights" T!-e% &' Re$ed)e%2,emedies3 contain two separate concepts! the first being procedural and the second substantive! as e4plained by 5inah .helton!)n the first sense! remedies are the processes by which arguable claims of human rights violations are heard and decided! whether by courts! administrative agencies! or other competent bodies" The second notion of remedies refers to the outcome of the proceedings! the relief offered the successful claimant"(1 Rosalyn Higgins Problems and Process: International Law and How We Use it (Oxford: Oxford University Press, 1994) p. 95.2 anfred !o"a# $%&e !eed for a 'orld (o)rt of H)*an Rig&ts+ , Human Rights Law Review (-..,) p. -54.P a g e| 2.tates are re-uired to provide effective remedies for human rights violations"6 The victim! whose rights have been violated! and has suffered harm or in$ury! should be offered procedural remedies in the form of access to $ustice as well as substantive redress" %ccess to $ustice therefore re-uires/a. ,emedial institutions and procedures to which victims have access"b. These institutions and procedures should be/ )" independentII. able to afford a fair hearing through $udicial or non&$udicial remedies! or both7III. able to investigate! prosecute! and punish violators8.ubstantive redress re-uires that the above procedures be/a. 9ffective i"e" capable of redressing the harm that was inflicted: and furthermore that b" The reparation should be )" ade-uate! ))" effective! )))" prompt! and IV. proportional to the gravity and harm suffered";)n sum! the terms 2remedies3 or 2redress3 refer to the range of measures that may be taken in response to an actual or threatened violation of human rights" They thus embrace the substance of relief as well as the procedures through which relief may be obtained" ,emedies may include an award of damages! declaratory relief! in$unctions or orders! and attorney3s fees and costs"evin Goyle, $Hate 0pee5&, %&e United 0tates vers)s t&e rest of t&e 'orldH+ 5?.- #aine Law Review (-..1) p. 419.23 :3id.24 %&is is 3ro)g&t )p in t&e travau. pr3paratoires on t&e drafting of =rti5le -., "&ere =)stralia notes t&at Bt&e arti5le, "&et&er in its original for* or any of t&e a*ended versions, 5ontained no provision setting fort& any parti5)lar rig&t or freedo*JK on t&e 5ontrary, it 5o)ld 3e )sed 3y any govern*ent to s)ppress t&e very rig&ts and freedo*s "&i5& t&e (ovenant "as designed to preserveC. %&ird (o**ittee, 17t& session (1971) regarding =rti5le -., availa3le at: ar5 D. Goss)yt uide to the 4Travau. Pr3paratoires5 of the International &ovenant on &ivil and Political Rights (/ordre5t&: artin)s !iI&off, 191,) p. 4.,.25 %&e 2eneral Re5o**endations of t&e (o**ittee on t&e 4li*ination of Ra5ial /is5ri*ination, alone, are ill)strative of t&e range and s5ope of efforts reE)ired 3y states to respond effe5tively to entren5&ed dis5ri*ination. 0ee: 2eneral Re5o**endation -,, /is5ri*ination against Ro*a, adopted at t&e fiftyAsevent& session on 17616-... and 2eneral Re5o**endation -9 on =rti5le 1(1) of t&e (onvention (/es5ent), adopted at t&e sixtyAfirst session on 16116-..-.26 :3id., p. 5.1.P a g e| 6evils as national! racial and religious hatred or pre$udices"': %rticle '>3s 2incitement to discrimination! hostility or violence3 therefore provides safeguards in the conflict between speech rights and e-uality rights"'; %rticles '! '8 and ': of the )**+, uphold non&discrimination! including against persons belonging to minorities" %rticle '(#)3s non&discrimination provision states/9ach .tate +arty to the present *ovenant undertakes to respect and to ensure to all individuals within its territory and sub$ect to its $urisdiction the rights recognized in the present *ovenant! without distinction of any kind! such as race! colour! se4! language! religion! political or other opinion! national or social origin! property! birth or other status" %rticle '8 states/%ll persons are e-ual before the law and are entitled without any discrimination to the e-ual protection of the law" )n this respect! the law shall prohibit any discrimination and guarantee to all persons e-ual and effective protection against discrimination on any ground such as race! colour! se4! language! religion! political or other opinion! national or social origin! property! birth or other status" Taken together with %rticle ': of the )**+,! given below! it is clear that the prohibition of discrimination relates to all persons! as well as there being particular additional attention to persons belonging to minorities"'< )n those .tates in which ethnic! religious or linguistic minorities e4ist! persons belonging to such minorities shall not be denied the right! in community with the other members of their group! to en$oy their own culture! to profess and practise their own religion! or to use their own language")ndeed! the interrelated nature of rights re-uires that we read %rticle '> along with other )**+, obligations" ?urther to the obligations falling upon .tates parties in relation %rticle ':! we should also note that even in instances of public emergencies which threaten the life of the nation! %rticle 6 re-uires that derogations do not involve discrimination"(> )t follows! therefore! that any actions stemming from %rticle '> too should not have even the indirect effect of discriminating! inter alia against minorities" The importance of ensuring that restrictions on rights not have a discriminatory effect is also emphasised elsewhere" ?or e4ample! in relation to %rticle #; of the )**+,! the 0uman ,ights *ommittee comments )n interpreting the scope of permissible limitation clauses! .tates parties should proceed from the need to protect the rights guaranteed under the *ovenant! including the right to e-uality and non&discrimination on all grounds specified in articles '! ( and '8"(# ?urthermore! the 0uman ,ights *ommittee insists that any limitations for the purpose of protecting morals must be based on principles not deriving e4clusively from a single tradition" This is a standard that should be observed in guiding 27 %&ird (o**ittee, 17t& session (1971) regarding =rti5le 19, availa3le at: ar5 D. Goss)yt, p. ?9?.28 4li;a3et& 9. /efeis $9reedo* of 0pee5& and :nternational !or*s: = Response to Hate 0pee5&+ (199-) -9.5, )tanford 2ournal of International Law pp. 5,A1?..29 9or a dis5)ssion see: !a;ila 2&anea, $inorities and Hatred: Prote5tions and :*pli5ations+ 1,.? International2ournal of #inorit! and roup Rights (-.1.) pp. 4-?A447. 30 =rti5le 4(1), :((PR.31 2eneral (o**ent --, para. 1.P a g e| 7understandings of incitement" There should be careful regard for any action $ustified under %rticle '> that singularly protects only one race! religion or ethnicity particularly if that happens to also constitute a dominant ma$ority" 9n$oyment of human rights without discrimination is a fundamental right which clearly also entails the right to a remedy" %s in other human rights violations! the remedies for incitement and discrimination would likely focus on the one hand on procedural redress! and on the other on the accountability of wrongdoers! non&pecuniary damages for the victims!(' and awareness raising" )n this regard! 9*,) has commented thatFiGf member .tatesH legal commitment to combating racism and intolerance is to be fully effective! sustained measures must be taken to ensure that everyone is aware of the remedies available and how to make use of them" These measures should be matched by efforts to inform the broader public about legislation to combat racism! 4enophobia! antisemitism and intolerance! so that its effects in terms of access to the courts and compensation are supplemented by an educational impact on the general public"((The travaux preparatoirs of %rticles #< and '> of the )**+, suggest that there was scant discussion of remedies" 0owever! a number of contributions seemed to support that the emphasis should be on 2corrective remedies3 such as a right to reply"(6 )t is interesting to note that where the DN *ommittee on the 9limination of ,acial 5iscrimination found a violation of %rticle 6 in The Jewish Community of Oslo et al v. Norway(7 case they also found violation of %rticle 8 (effective protection and remedies) and asked the government to take steps and report back within 8 months to ensure that such speech does not en$oy protection under freedom of speech in 32 Pe5)niary loss is generally a"arded on t&e 3asis of spe5ifi5 eviden5e of loss, "&i5& is generally i*pra5ti5al in s)5& 5ases. !onApe5)niary loss is for pain and s)ffering. =s5ertaining da*ages for nonApe5)niary loss in a prin5ipled "ay, &o"ever, 5an 3e diffi5)lt to as5ertain. 0ee: Ro3ert (arn"ort&, $Re*edies fro* a (o**on la" perspe5tive+ 49 International and &omparative Law 6uarterl! (-...) pp. 51,A5-,.33 4(R:, Position Paper, 4)ropean 5ontri3)tion to t&e 'orld (onferen5e against Ra5is*, Ra5ial /is5ri*ination, Lenop&o3ia and Related :ntoleran5e, 0tras3o)rg, 11A1? O5to3er -..., 4URO(O!9 (-...) 5, =)g)st -..., para. -., availa3le at &ttp:66""".siss5o.it6filead*in6)serF)pload6/ossiers6nega;ionis*o6do5)*enti645riFpFpapersF-....pdf (last a55essed 9e3r)ary -.11).34 /rafting (o**ittee, -nd session (1941) regarding =rti5le 19, availa3le at: ar5 D. Goss)yt, p. ?,5, para. (-&. %&e arg)*ent t&at t&e response to &ate spee5& is *ore spee5& is proposed 3y *any. :n a $7! '>>;) the *ourt awarded each of the applicants 8!>>> 9uros in respect of non&pecuniary damage and '!>>> 9uros for costs and e4penses )n the case of *ngelova an "liev v. +ulgaria (application no" 777'(I>>! '>>:)! where the *ourt noted the knowledge of the authorities about an attack which was incited by racial hatred against a person of ,oma origin! it found violation of %rticles ' (right to life) and #6 and it awarded #7!>>> 9uros in respect of non&pecuniary damage to the applicants and (!7>> 9uros in respect of costs and e4penses )n the case of )e$i$ v. Croatia (application no" 6>##8I>'! '>>:)! where the applicant had suffered both racially motivated physical attacks and racist verbal abuse on grounds of his ,oma origins! violation was found of %rticle ( (inhuman treatment or punishment) and %rticle #6 and the applicant was awarded ;!>>> 9uros in respect of non&pecuniary damage and 8!>>> 9uro for costs and e4penses" )n ,lein v. )lovakia (application no" :''>;I>#! '>>8) the *ourt found violation of %rticle #> with respect to the applicant who was a $ournalist and film critic who had criticised %rchbishop JKn .okol! the highest representative of the ,oman *atholic *hurch in .lovakia! in an article that he described as a literary $oke" The article contained strong imagery and made reference to an act of incest committed between a church dignitary and his own mother in the film the %rchbishop sought to outlaw" 0e also alluded to the %rchbishopHs alleged cooperation with the secret police of the former communist regime and he invited the members of the *atholic *hurch to leave their church if they considered themselves to be decent" The *ourt decided that the applicant had not discredited and disparaged *atholics and had not interfered with their freedom of religion! it had only been pe$orative and vulgar with respect to the %rchbishop")t awarded the applicant 8!>>> 9uros for non&pecuniary damage and 7!'#> 9uros for costs and e4penses" )n Norwoo v. -nite ,ingom (application no" '(#(#I>(! '>>6) the *ourt declared inadmissible the case of the applicant! a British National +arty (BN+) regional organiser! who was claiming violation of %rticle #>" 0e had posted a large poster with a photograph of the Twin Towers in flame with the words 2)slam out of Britain & +rotect the British +eople3 and a symbol of a crescent and star in a prohibition sign" The police removed the poster and asked him to interview in the local police station but he refused to attend and was charged with aggravated offence under section 7(#)(b) of the +ublic Erder %ct # rights and discrimination contrary to %rticle #6" The *ourt! however! agreed with the assessment of the domestic courts that the poster amounted to a public e4pression of attack on all Muslims in the Dnited Aingdom and therefore constituted an act within the meaning of %rticle #:! which did not! P a g e| 10therefore! en$oy the protection of %rticles #> or #6" )t therefore unanimously declared the application inadmissible" )n Glimmerveen an .a/en/eek v. The Netherlans (application no" ;(6;I:; and ;6>8I:;! #i*3erlM 'illia*s (rens&a" $Ra5e, Refor* and Retren5&*ent: %ransfor*ation and @egiti*ation in =ntidis5ri*ination @a"+ 1.1., Harvard Law Review (1911) p. 1??5.46 4(R:, Position Paper, 4)ropean 5ontri3)tion to t&e 'orld (onferen5e against Ra5is*, Ra5ial /is5ri*ination, Lenop&o3ia and Related :ntoleran5e.47 =n exa*ple of t&is is arg)a3ly t&e Na&in I)dg*ent of t&e 4)ropean (o)rt of H)*an Rig&ts "&i5&, Geleleie) 5ritiE)es as follo"s:P a g e| 11simplistic! however! to assume that more laws and new laws alone will act as a panacea to this age old problem")n traversing the long $ourney to countering discrimination! whether at the 9uropean level or elsewhere! the prohibition of incitement has a role to play in particular conte4ts" 0owever! it is a blunt and very particular tool whose over&e4ploitation will prove far more damaging to that end than its under&utilisation" )t is for reasons such as this! that specialist bodies such as 9*,) have consistently emphasised that legal remedies must be supplemented by other measures" 9*,) has recommended that as well as legal measures such as ensuring the commitment of the .tate to e-ual treatment and the countering of intolerance in national criminal! civil and administrative law there needs to be attention given to policies in a number of areas including/ education! information! awareness raising! training! and developing formal and informal structures for dialogue between minority communities and state agencies such as the police"6; The challenge is to commit to policies and practices aimed at encouraging respect for the human rights and dignity of those in society who are regarded as different"6< 9nsuring procedural and substantive redress in this area re-uires a long term commitment which supplements legal remedies with a wide range of other commitments! structures and policies" )ndeed the importance of prevention and the depth of the problem demand this"Re(&$$enda#)&n% '&r #+e Se$)nar516 Le*e1% &' Re%-&n%e %s argued elsewhere!7> on the one hand we should be wary of the risks carried by %rticle '> but! on the other we should not be negligent of our duty to address discrimination robustly" Ce are offered three avenues in international human rights law with which to respond to very different levels of discrimination" %bhorrent though discrimination undoubtedly is in all its guises! the responses are tailored to the scale of the violation"1. The first level response is armed with the tools such as %rticles 7! # which protect only the dominant race! religion or ethnicity" 586 Re$ed)e% #+a# A--1! )t has been argued above! that the right to a remedy does not singularly apply to %rticle '>(')" 0owever remedies are applicable to violations of discrimination more generally! whether at the gravity of the first! second or third levels! as outlined above")n such instances! both procedural and substantive redress is applicable! such as bringing wrongdoers to $ustice! non&pecuniary damages for the victims! court costs and e4penses! and awareness raising towards the ob$ective of non&repetition" 596 Re:)red Re%-&n%e% Chilst legal processes in general can be criticised for being slow! remote and conservative! an overview of 9uropean case law has brought to light instances where it has shown vigilance for victims and concern with the dangers of incitement for minorities" Oegal processes need to be vigorously supplemented with other societal measures in recognition of the depth of the challenge of discrimination and the importance of its prevention" (5) D)''er)n/ +a#red% and +$an r)/+#% 7#%ny effort to transplant thresholds and standards across various human rights norms to create new normative instruments or interpretations! without careful deliberation! could lead to unforeseen and damaging human rights conse-uences" 2*reative borrowing3! say between race and religion! needs to be cognizant of the distinctions and protections originally offered" There are distinctions that relate to! for e4ample/ limitation grounds! whether the right is absolute or not! whether the right can be sub$ect to derogation or not! relevant standards such as 2without interference3 (%rticle #