A couple of months ago, I wrote a blog post on how international and European law, which is relevant to challenging hate speech, is marred by several limitations, including what I describe as a hierarchy of hate. Namely, making certain types of speech such as racist speech punishable or prohibitable but not others, such as homophobic speech. Taking into account the recent release of the results of the third monitoring cycleof the European Commission’s Code of Conduct on illegal hate speech, I wanted to focus solely on hate speech. In this blog post, I wish to further embellish on this notion of hierarchies, beyond the sphere of hate speech, into other domains such as hate crimes and the EU’s non-discrimination framework more generally.
Hate crime is a severe crime, a message crime, a symbolic one. It is different to others as it targets the identity of its victim or victims with impact on a micro (individual), meso (group) and macro (societal) level. As noted in a 2014 report of theOffice for Democratic Institutions and Human Rights, there is no consensus amongst OSCE States as to which characteristics should in fact be protected under hate crime laws. This could, partly, emanate from the fact that the international framework and, where relevant, the European Union framework are, in themselves, lacking. Article4(a) of the International Convention on the Elimination of all Forms of Racial Discrimination prohibits acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin. Article 4 of the EU’s Framework on Racism and Xenophobia provides for racist and xenophobic motivation, stipulating that for offences other than hate speech related offences, Member States shall take the necessary measures to ensure that racist and xenophobic motivation is an aggravating factor or that it is taken into account when determining penalties. Article 16 of the International Convention on the Rights of Persons with Disabilities protects persons with disabilities from violence and underlines that violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted. Those are the only tools that have emanated from the UN and the EU to punish hate crime. Furthermore, just as is the case with the respective hate speech framework, no provisions or documents exist that tackle hate crime directed at the LGBTI community. In fact, the European Parliament itself issued a resolution in which it askedthe Commissionto propose a recast of the Framework Decision and include the grounds of sexual orientation and gender identity. This is a problem both conceptually (it could be deemed as legitimising the disregard of some groups in terms of human rights and freedoms) and practically. Let us remind ourselves of the first (and) last ever EU-wide LGBT survey conducted by the Fundamental Rights Agency which found, amongst others, that:
- 26% of LGBT people who responded to the survey had been attacked or threatened with violence in the last five years;
- 66% of respondents were scared of holding hands in public with a same-sex partner and for gay and bisexual men, the figure was about 75%.
Although the EU does recognise the impact of hate crimes on persons who are targeted due to their sexual orientation or gender identity through its Directive on the Rights of Victim, this document has the purpose of ensuring that victims of crime receive information, support and protection. However, as significant as this is, it comes into play afterthe crime has happened. The EU (and other institutions such as the UN) should also develop a framework in which homophobic, biphobic and transphobic acts are criminalised by States, as it the case with the Framework Decision and racist crimes. All I can conclude from appraising the situation is that, essentially, on a European level, the competent institutions did not deem it significant to develop a Framework Decision on several forms of intolerance, thereby ousting LGBT groups from protection against hate speech and hate crime. However, they did remember this group, amongst others, for their post-crime experience. In brief: not good enough.
EU Non-Discrimination Framework
Article 19 of the Treaty on the Functioning of the European Union and the resulting Council Directives 2000/43/EC(the Racial Equality Directive) and 2000/78/EC(the Employment Equality Directive) were major developments for the non-discrimination framework of the EU. Essentially, though these directives, ‘race’ and ethnicity, religion, sexual orientation, disability and age were deemed protected characteristics. However, not all characteristics are granted the same significance in the EU legal order since race and ethnicity are protected by Directive 200/43/EC which provides for equal treatment in relation to a plethora of spheres, namely employment, vocational training, social protection and advantages, education and access to and supply of goods and services. However, the Employment Equality Directive, which integrates the rest of the protected characteristics, such as disability and sexual orientation, is limited to the workplace and vocational training.
On a Council of Europe level, there is theECRI(European Council against Racism and Intolerance). This body monitors phenomena related to discrimination and intolerances against ‘race.’ There is no equivalent body on a Council of Europe level to tackle homophobia, biphobia and transphobia and, apart from reference to such themes in documents such as the general recommendation on hate speech, the ECRI extended its mandate to cover these phenomena. The European Union has taken a different path, establishing one human rights body, the Fundamental Rights Agency, dealing with all related themes generally rather than specifically.
In light of the above, this hierarchy of hate, this arbitrary focus on particular protected characteristics over others in certain spheres should leave nothing but a sour taste in the mouth of institutions and Member States which are allegedly founded on principles of solidarity and equality. The reasons for this loophole are unclear. My personalappraisal of the situation, after working both on the ground and in academia is that international human rights law, as a post World War II creation has been predominantly formed by the desire of the international community to prevent the reoccurrence of the horrors of racism. Although persons belonging to other minorities at the time such as LGBTI persons were victims of the Nazis, the focus, most probably because of numerical differentiation, has been on the extermination of the Jews. As such, subsequent developments to tackle hatred have never really departed from this mindset. Another reason could be the (wrongly) perceived issue of choice. More particularly, that one cannot choose to hide one’s ethnic group, whereas one can hide the fact that, for example, he or she is gay or lesbian. Either way and whatever the reasons for this anomaly, within such a context, efforts to combat anti-LGBTI hate on an international and European level are seriously stifled. What is necessary is a common approach where personal and innate characteristics which are real, perceived or exist by association are protected from haters. It must be noted that an emphasis in this post is on sexual orientation and gender identity because it is the only characteristic which this author considers to be completely lacking from the relevant frameworks on the regulation of hate. This position does not exclude discussion on extending the current framework further. For example, although protection of disabled people from violence exists on a UN level, this is not deemed sufficient in relation to identifying and punishing the aggravation arising from the hate towards disabled people. One solution, at least for EU Member States would be amending the Framework Decision as the only European hate crime document to extend to disability as well.