Committee on the Elimination of Racial Discrimination holds thematic discussion on racist hate speech

28 August 2012

The Committee on the Elimination of Racial Discrimination today held a thematic discussion on racist hate speech in which it held three panel discussions on the concept of racist hate speech and its evolution over time, on racist hate speech in political life and in the media, including the Internet, and on racist hate speech and freedom of opinion and expression. The work of the Committee in combating racist hate speech was also discussed.

Alexei Avtonomov, Committee Chairperson, in his opening remarks, said that the aim of the thematic debate was to stimulate reflection and enhance understanding on the causes and consequences of racist hate speech and how the resources in the Convention on the Elimination of All Forms of Racial Discrimination might be used to combat it. Mr. Avtonomov said that at its next session the Committee would continue to reflect upon the results of this debate and would decide on further action to be taken, including on the possibility of initiating the preparation of a General Comment on racist hate speech.

Anastatia Crickley, Committee Expert and moderator of the panel on the concept of racist hate speech and its evolution over time, said that the discussion in the Committee today aimed at enhancing the understanding of causes and consequences of racist hate speech, with the ultimate objective of sharpening the efforts to combat it. The modern forms of racist hate speech differed from definitions crafted in the 1960s and 1970s; its complexity needed to be recognized in legal and societal terms, said Ms. Crickley, emphasizing that the prohibition of all forms of discrimination was compatible with the right to freedom of expression.

The panellists were Doudou Diène, Independent Expert on the Human Rights situation in Côte d’Ivoire and former Special Rapporteur on contemporary forms of racism; Nazila Ghanea, Lecturer at the University of Oxford; and Mark Lattimer, Executive Director of Minority Rights Group International.

Two Committee Experts also took the floor in this panel. Ion Diaconu presented the work of the Committee on the Elimination of Racial Discrimination in combating racist hate speech, and Regis De Gouttes spoke about individual complaints received by the Committee with regard to racist or xenophobic hate speech.

Heiner Bielefeldt, Special Rapporteur on freedom of religion or belief, also spoke and said that intersectionality was important because many people were suffering from many forms of discrimination which overlapped and intersectionality must be a starting point in understanding the phenomenon and in designing strategies to combat racism and racial hatred.

The panel on racist hate speech in political life and in the media, including the Internet, was moderated by Fatima-Binta Victoire Dah, Committee Expert, who introduced the panelists: Marc Leyenbergerer, Member of the European Commission against Racism and Intolerance; Mutama Ruteere, the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; and Tarlach Mcgonagle, Lecturer at the University of Amsterdam.

Frank La Rue, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and Agnes Callamard, Executive Director of ARTICLE 19, were the two panellists in the panel discussion on racist hate speech and freedom of opinion and expression. Mr. La Rue participated via audio link from Guatemala.

In concluding remarks, Patrick Thornberry, Committee Expert and Rapporteur for the session, summarized the discussion and said it exposed potential fault lines in the Convention on the Elimination of All Forms of Racial Discrimination. Several recommendations were made to the Committee concerning its future work on racist hate speech, which the Committee would take under advisement.

Speaking in the discussion today were Senegal, European Union, Russia, Armenia, United States and Australia.

The following non-governmental organizations spoke: Amnesty International, International Movement against Discrimination and Racism, Indigenous Peoples and Nations Coalition, Irish Network against Racism, and Centre for Equal Opportunities. Anwar Kemal, Committee Expert, also took the floor.

The next public meeting of the Committee will be held at 10 a.m. tomorrow, 29 August, when the Committee will meet with the President of the African Court on Human and Peoples Rights.

Panel 1: The Concept of Racist Hate Speech and its Evolution over Time

Presentation by Panellists

DOUDOU DIENE, Independent Expert on the situation of human rights in Côte d’Ivoire and former Special Rapporteur on racism, said that racist hate speech was key to the evolution of human rights and was at the heart of many conflicts today. The most visible indicator of the increase in racism, racial discrimination and xenophobia was spreading racist hate speech, which was clear in three areas, namely in the context of terrorism, the clash of civilizations and the widespread identity crisis in many societies. Multiculturalism was a factor in modern societies and was often seen as a threat to societal identities. Mr. Diene outlined the political context of racism and xenophobia in some countries and said that the electoral effectiveness of racist political platforms was evident in the spread of racism and racist hate speech in those societies. National identity and security needed to be protected and secured against the immigrants and others and there were examples of physical violence aiming to destroy those individuals or groups seen as domestic enemies in some societies. The main issue of most modern societies was in the deep rooted contradiction between the nation-State and the dynamic process of multiculturalism of those societies. Political leaders often ignored this dimension, but it revealed the need to couple legal measures to fight racism and racist hate speech with long lasting changes in societies themselves. In conclusion, the Independent Expert reiterated that hate speech revealed three principal challenges to modern multicultural societies, namely the need for democratic vigilance against the diversion of its principles and legitimization of racist and xenophobic platforms; complementarity of fundamental human rights; and legal and cultural promotion of democratic, egalitarian and interactive multiculturalism. Racist hate speech was only the beginning of a deep rooted and multilayered process and there was a need to reflect on how it was used by political forces to motivate people to action.

NAZILA GHANEA, Lecturer at the University of Oxford, said that the Committee on the Elimination of Racial Discrimination had been very active in the area of racist hate speech and noted the emerging complexity of the hate speech which posed new challenges to the work of the Committee. One such challenge was the intersectionality of different forms of discrimination, for example race, gender or ethnicity. The methodology of intersectionality might be appropriate for the analysis of racist hate speech. It seemed that hate speech mongers today received very good legal advice and were apt to navigate the legal waters in their hate speech. Migrants might be targeted for racial discrimination especially because of their migration status. There was a warning to be heeded, and any effort in addressing racist hate speech must apply to human rights norms and standards. The criteria for defining racial discrimination differed from those defining racial hatred. Ms. Ghanea welcomed the use of intersectionality in the work of the Committee with regard to racist hate speech; the Committee should continue with this approach with the necessary attention to the nature of the rights at hand, otherwise even more rights could be violated.

MARK LATTIMER, Executive Director of Minority Rights Group International, in his presentation focused on methods of controlling racist hate speech by Governments and said that the recent history of hate speech provisions showed the tendency to silence dissidents. It was vital to the discussion today to consider some of the extreme cases of incitement to crimes against humanity or incitement to genocide, for example in pre-World War II Germany or in the 1990s Rwanda. The blind spot in the Genocide Convention was to not penalize the incitement speech that always happened before the genocide. Hate speech was a precursor to the most serious crimes against humanity and needed to be seen as such. Article 4 of the International Convention on the Elimination of Racial Discrimination provided for three types of protection against racist hate speech, including for criminal penalties for the practitioners of hate speech. Criminal penalties for hate speech, while being a vital and necessary measure in combating the phenomenon, presented a number of problems: they could be used to penalize minorities of dissidents, there was a potential conflict with rights to freedom of expression, and new globalized communications could make criminal prosecutions impractical. Criminal prosecutions were unlikely to be used in practice for the most dangerous forms of hate speech, the one practiced by governments and other public officials. For this reason, the rather neglected sub-paragraph 4(c) was the most important of Article 4, and the challenge remained in how to promote it to curtail official support for racist hate speech.

Combating Racist Hate Speech: the Work of the Committee on the Elimination of Racial Discrimination

ION DIACONU, Committee Expert, said that Article 4 of the Convention obliged States parties to undertake immediate measures to eradicate all incitement to acts of racial discrimination. In 1985 the Committee adopted General Recommendation 7 relating to the implementation of this article in which it had asked States to take steps to satisfy the mandatory requirements of Article 4. In 1993, the Committee noted in its General Recommendation 15 the increased importance of the implementation of Article 4 and expressed the opinion that the prohibition of all ideas based on racial superiority or hatred was compatible with the right to freedom of opinion and expression. Reviewing reports that in some cases political parties and politicians were the spokesmen for racist ideas, the Committee had expressed concerns about the dissemination of ideas of racial superiority by political parties or high-level public officials. It had recommended that States strengthened their measures to prevent and combat xenophobia and racial prejudice among politicians and gave due attention to those manifestations. In connection with the media, the Committee noted their use in the incitement to racial intolerance and hatred and asked the States to encourage the media to develop their own codes of conduct to prevent the spread of hate speech. Most national laws, mainly in Europe, criminalized racist and hate speech, but there was no obvious common understanding of Article 4. Many States had entered in the 1960s reservations to Article 4 of the Convention, but many had since developed their own national legislation to this effect and started the process of withdrawing the reservation. The Committee had acquired experience in connection with Article 4 and had shared them with States and other treaty bodies and international bodies in connection with racist hate speech.

REGIS DE GOUTTES, Committee Expert, said that a number of complaints received by the Committee had been with regard to racist or xenophobic hate speech. Most of those were received by non-nationals with the assistance of lawyers and concerned four countries in Europe, namely Denmark, Norway, Russia and Germany. The cases involved racism and xenophobia against Muslims and Roma, ranging from hate speech to prohibition of customs. Lessons learned from those communications concerned the delicate balance between racism and freedom of expression, and the responsibility of States to guarantee rights and establish intercultural harmony in societies. The best strategy against hate speech was to combat it through speech on the other side; education and awareness raising to combat racism through speech.

HEINER BIELEFELDT, Special Rapporteur on freedom of religion or belief, said that intersectionality was important because many people were suffering from many forms of discrimination which overlapped. Contempt and paranoia led to aggressive forms of racism and xenophobia. Intersectionality must be the starting point. Mr. Bielefeldt warned against drawing wrong conclusions and against forgetting the specificities of the right to religion or belief. This must not be left out of the picture when designing strategies to combat racism and racial hatred.

Discussion

Senegal said that the contemporary events made it clear that there were limits to freedom of expression and that the efforts to combat racism must be redoubled and put on the international agenda. Senegal asked what the link was that could be forged between racial hatred and xenophobia and how the fight against racist speech might impact the combat against racial discrimination globally. European Union underlined the importance of holding public and open discussions on the subject and welcomed the conceptual clarification and precision provided by the panelists, which were necessary in crafting the legislation to combat the phenomena. Russia said that freedom of expression and opinion could not be absolute and individual freedoms must be balanced against those of others. Amnesty International outlined the research it conducted on racist hate speech and recommended that the Committee clearly defined measures to combat racial discourse in line with Article 4. States should use the full range of measures provided by the Convention to combat racial discrimination and resort to broader measures, including education, and not only use prohibitive measures. International Movement Against Discrimination and Racism expressed the difficulty it faced in defining racist hate speech because of its many forms and asked the experts to help in providing some definitions.

DOUDOU DIENE, Independent Expert on the situation of human rights in Côte d’Ivoire and former Special Rapporteur on racism, warned about repeating the same discussions held ten years ago and reiterated the need to remember the context in which the genocide in Rwanda happened. It was important not to get stuck in legal discussions and facilitate the human rights bodies to take action on those issues.

ION DIACONU, Committee Expert, said there was a direct link between racial discrimination and xenophobia. Reservations on Article 4 were there, and many States did not need them any longer because they had adopted national legislation that gave full effect to Article 4. This was a simple case of inertia and some States forgot they had entered the reservation.

NAZILA GHANEA, Lecturer at the University of Oxford, said that existing norms were sufficient but needed to be used with more determination. Putting intersectionality at the heart of the matter and recognizing that individuals could be singled out for multiple reasons would provide sufficient tools to combat hate speech.

MARK LATTIMER, Executive Director of Minority Rights Group International, said that norms had been talked about for a long time. The difficulty was not the norms, but individual contexts in which racist hate speech took place. That made any definition of hate speech which involved criminal penalties particularly fraught. With regard to statements made and published on the Internet, where context was immediately lost, the challenge was in evaluating the context and establishing the criminal intent for the prosecution. More time should be spent on understanding who the principal culprits were: members of local authorities and mayors in Eastern and Southern Europe making inflammatory statements against Roma, minorities and any other individuals and groups for their own political ends.

Armenia said that global economic and technological progress had provided new ways and means of spreading racist propaganda and hatred. Hatred was destructive and devastating and the international community must join hands with the human rights community to combat the phenomenon. Indigenous Peoples and Nations Coalition noted that sometimes silencing the victims through procedure was a way to stop indigenous peoples or people with major complaints against States, society or corporations.

ANWAR KEMAL, Committee Expert, said he understood the frustration expressed by some speakers and noted the global interconnectedness of events today.

DOUDOU DIENE, Independent Expert on the situation of human rights in Côte d’Ivoire and former Special Rapporteur on racism, said that it was the lack of consensus on the issue which had brought this group together today and said that questions must be asked about the events in Norway in which 77 people had been killed. There was a need to discuss complementary norms as no legal field lasted forever and it needed to be adapted continuously. It was essential to understand the seriousness of the situation, see racial discrimination as just the tip of the iceberg, and understand how to get to the heart of the problem.

REGIS DE GOUTTES, Committee Expert, noted the need to focus on education measures to combat racism, racial discrimination and xenophobia, including for public officials. Religions also had a role to play in protecting the dignity of human beings. It was not to be forgotten that States were not acting alone in the struggle for human rights.

Closing Remarks

MARK LATTIMER, Executive Director of Minority Rights Group International, said that it was wise to accept that all the nasty things were already on the Internet, from burning books to racist speech. There was a need to focus on the more pressing evils: the processes leading to legitimization of hate speech. This was where the benefits of today’s discussion were. Minorities around the world were often not too concerned by hate speech against them; what they saw as a problem was denial of their own right to speech and freedom of expression.

NAZILA GHANEA, Lecturer at the University of Oxford, said that sometimes Governments cynically used hate speech from other parts of the world in order to deflect attention from grievances in their own societies and used them to camouflage the political grievances that must be addressed nationally.

ION DIACONU, Committee Expert, noted the need to adopt the complementary norms and adapt the existing norms to the new forms of racist hate speech. Intersectionality was a very important idea, and the responsibility and action of governments and political parties in dealing with hatred. All regulations and applications of those concerning prohibition of racist speech should not affect the rights of vulnerable groups. Criminal law was not the only need to combat racist hate speech and other means were available and should be looked at.

DOUDOU DIENE, Independent Expert on the situation of human rights in Côte d’Ivoire and former Special Rapporteur on racism, said there was a need for a more holistic approach to the issue, from the law, which was the final expression, to the social and cultural processes. Hate speech was becoming a trend against democracy as those preferring it were using democratic principles cleverly to express their platforms and slowly gain vote and access to power. It was highly important to understand that banalization and normalization of hate speech must be urgently addressed.

ALEXEI AVTONOMOV, Committee Chairperson, said that Article 4 did not provide only for the adoption of laws but referred to measures to eradicate racism and hate speech. Expressions of hatred must be stopped as they could lead to incitement to improper feelings, as happened with Nazism.

Panel 2: Racist Hate Speech in Political Life and in the Media ,including the Internet

Presentation by Panellists

MARC LEYENBERGERER, Member of the European Commission against Racism and Intolerance, concurred with previous speakers in expressing his concern about racist hate speech in discourse by political leaders who did not mind abusing the freedom of opinion and expression to disseminate venom to humiliate all those excluded from our societies. The challenge was of striking a balance between the legitimate demands of the two rights, the right to be protected from racism and the right to express oneself freely. Freedom of expression was not an absolute freedom and some restrictions could be imposed on the exercise of this right; restrictions however must be justified and the right could be limited when words were used to incite hatred. The use of racist hate speech was ethically inacceptable because fundamental respect for human dignity should exist and Mr. Leyenbergerer was concerned about normalization and acceptance of hate speech by political figures. New means of communication contributed to wider spreading of this type of speech and extremist political measures. There was a need to go beyond the stage of concern and make concrete recommendations to States to criminalize hate speech. Education played a crucial and key role in combating racism, hatred and intolerance, while political parties were key actors and could also play a role by educating the public.

MUTAMA RUTEERE, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, said that the global economic crisis, economic uncertainty and the rise in unemployment in many parts of the world had intensified social anxieties and created an environment conducive to xenophobic and racist attitudes and discriminatory policies and practices. This negative trend was accompanied by the rise of hate speech in political discourse. Many extremist movements and groups were using the Internet to recruit members. It was estimated that by 2008, there were almost 8,000 websites with extremist ideology. Twitter, linkage of the Internet with mobile telephone platforms, and other forms of communication and technologies increased the number of people who used new technologies to spread and disseminate racist ideas. The Special Rapporteur had submitted a report to the sixty-seventh session of the United Nations General Assembly on the topic of racism and the Internet in which key issues and challenges posed by the increasing use of the Internet to disseminate racist ideas and incite racial hatred and violence were discussed. The report also offered possible measures that could be taken in line with the Durban Declaration and Programme of Action, and those measures were now under discussion with States. The regional approach to legislation might offer more effectiveness in combating the phenomenon than the international one, said Mr. Ruteere, underlining the need to take into account the historical background to the issue of racist hate speech.

TARLACH MCGONAGLE, Lecturer at the University of Amsterdam, said that hate speech had not been defined in an authoritative way in international law. Behind its straightforward appearance there was the complexity of its actual scope. From a legal perspective, this spectrum stretched from types of expression that were not entitled to protection under international human rights law, such as incitement to hatred, through types of expression that might or might not be entitled to protection depending on the context, to types of expression that would be entitled to protection despite their objectionable character, for example negative stereotyping of minorities. It was important to catch a notion of hate speech and align it with the Convention in order to define what was compatible and what was not with its relevant provisions. Mr. McGonagle further spoke about different influences of the media, which could be used in positive or negative ways, and noted that the media outlets were important vectors of culture and language. The media provided a vital function to democratic societies and was also a vehicle for counter speech, the most effective antidote to hate speech. The nature of the media was rapidly changing and it was becoming increasingly instantaneous, international and interactive. The content on the Internet was as diverse as human thought. There were a number of ways in which technology had changed the way of dissemination of racist discourse and hate speech and those technological advances gave rise to legal and regulatory challenges, grouped around liability and jurisdictional issues and around factors affecting victims of hate speech.

Discussion

European Union said that the one question this session needed to address was that of the medium used to disseminate hate speech. The key issue was the new challenges in combating racism arising from the use of modern media, such as the issue of borders, speed of transmission of messages, and the delineation between private and public spheres. Further, hate speech in political life must be addressed; the reference to political parties was rather restrictive and must be widened to include political figures and other makers of political opinion, including political, religious and local leaders. Russia noted that the world had fundamentally changed over the past 20 years and wondered whether States were aware of the risks of disseminating harmful ideologies. There was a code of professional ethics that governed the working of the media and journalists; this was not the case for the Internet which was utterly uncontrolled. Russia asked what measures must be taken at the regional and international levels to eliminate this problem and whether it was possible to do at all in the absence of international regulations governing the use of the Internet.

MARC LEYENBERGERER, Member of the European Commission against Racism and Intolerance, emphasized the crucial role of training for journalists and the development of professional attitudes respectful of human rights and ethics. The media was not the only problem; States too presented a problem by only partially implementing the recommendations by the European Commission against Racism and Intolerance.

TARLACH MCGONAGLE, Lecturer at the University of Amsterdam, concurred with the European Union in saying that the content of some hate speech was indeed such that the medium used was irrelevant. Delineation between private and public on the Internet was a complex issue and merited closer scrutiny in the future. Efforts should be directed at developing self-regulatory structures and media literacy; those often met with some scepticism and were seen as easy options to avoid regulation. But if designed properly and with sufficient political will at the national and international levels, they could present a worthwhile investment into education and so address causes of the hate speech on the Internet and not just its consequences.

MUTAMA RUTEERE, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, agreed with the proposal to widen the reference to political parties in relation to hate speech and include other groups and individuals spreading hate messages.

Panel 3: Racist Hate Speech and Freedom of Opinion and Expression

Presentation by Panellists

FRANK LA RUE, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, speaking via audio link from Guatemala, expressed his grave concern about racist hate speech and about various forms of discrimination. Freedom of expression was one of the most important elements in combating racial discrimination and other forms of hatred by building better understanding between peoples of the world. At the same time, abuses of freedom of expression must be of concern. There were different forms of protected speech, particularly those related to public speech, while prohibited speech fell into the category of Article 19 of the International Covenant on Civil and Political Rights and the prohibitions by national laws in order to protect the rights of people. States had the paramount responsibility to prevent hate speech and needed to deal with the discourse of public officials and ensure their respect for diversity. All journalists and those who formed associations should establish codes of professional standards.

AGNES CALLAMARD, Executive Director of ARTICLE 19, spoke of the banalization of racist hate speech, particularly in the form of petit racism or small racism, and emphasized that it needed to be tackled. Freedom of expression, even within its limits, had been highlighted as essential to democracy, human rights and human dignity. The framework and the definition of hate speech were fairly inconsistent and therefore difficult to tackle and there was no definition of hate speech in international law despite its frequent use. Hate speech could be understood via several sources, namely Article 19 and Article 20 of the International Covenant on Civil and Political Rights; and Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination. The concept of severity ought to be at the heart of discussions on the hate speech; not all speech was equal and the element of severity needed to be included in consideration of criminal sanctions. ARTICLE 19 had developed a test to determine the level of severity, which included several criteria such as the intent of the speaker to incite discrimination or violence; content of the speech, which was particularly important in cases of use of hate speech by public figures or by States; the position of the speaker – political, civic or religious leaders carried particular weight - and the means used to transmit the message; imminence of the harm occurring; and likelihood and probability of discrimination or violence. The recommendation was to focus on hate speech that was severe and identify speech that carried particular weight for the society.

Discussion

Irish Network against Racism highlighted the patterns emerging in hate speech which included the surprising emergence of right wing parties in some countries. It was absolutely important to have legislation as the cornerstone to preventing racism. No State was immune from the far right, and emergence of those parties in unlikely countries was an evidence of this. Centre for Equal Opportunities said that one of the problems it faced was how to combine theory with action in the domain where a word, used in the context of the right to freedom of expression, became an act in the context of hate speech and racial discrimination.

United States reiterated its firm position that in response to offensive hate speech, banning it was absolutely the wrong approach because suppressing ideas never made them go away. The most effective antidote to offensive speech was more speech. The United States questioned whether it would be wise for the Committee to focus its time and resources further on the topic of racist hate speech, when it could do so much more to help eliminate racial discrimination. Australia thanked the panellists who helped define the concept of hate speech and hoped the Committee would take them into consideration in its further work. There was a need to find the balance between addressing racist hate speech and respecting the right to freedom of opinion and expression. Australia encouraged the Committee to identify good practices from around the world in preventing rather than only reacting to racism.

Closing Remarks

PATRICK THORNBERRY, Committee Expert and Rapporteur for the thematic discussion, summarized the discussions today and said that addressing hate speech needed to happen in the context of international laws, norms and standards, particularly with regard to the right to freedom of expression and opinion. Speakers agreed that in this, the context was vital. Article 4(c) of the Convention on the Elimination of All Forms of Racial Discrimination was highlighted, as was the need for counter speech and more speech to combat racist hate speech. Other speakers cautioned against reliance on criminal law alone, and reiterated the importance of education and professional codes of conduct. Modes of addressing racist hate speech through the Convention were complex and did not happen in a vacuum and the interpretation of the provisions of the Convention must always take context into account. References to dividing the line between public and private were important for the Convention and this issue merited further consideration. Several other concepts that could affect the interpretation of the Convention were invoked, such as that of proportionality, while a number of speakers took up the balance between the use of criminal law and other forms of addressing speech. A question was asked about the need for additional norms, and speakers agreed that the challenge was in making the existing norms more effective in the contemporary context. The discussion today exposed potential fault lines in the Convention and the Committee would take under advisement the recommendations made to it by participants today for its further work on racist hate speech.

ALEXEI AVTONOMOV, Committee Chairperson, said that tomorrow the Committee would hold a public meeting with the President of the African Court of Human and People Rights.

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