Hate Crime Legislation Is A Solution for the Middle East and Worldwide

I have been reading excerpts of the World Report 2011 into the conflict between Israel and Palestine and to my surprise the situation remains the same. This shows me there is a refusal to look inwardly. The feeling that came up for me was the deep hatred on both sides. This of course is the real road block to peace. You cannot negotiate peace intellectually, you have to look at the emotional anger and inability to get past that anger. This of course is maintained by unchanging beliefs. Moreover, military mindsets see an enemy not civilians with different cultures and views. When they are not looking at problems from a higher perspective, they are not seeking to resolve and live together in harmony. They are seeking to drive the enemy out, it appears. Yet the real enemy is the constant anger and stress that plagues their lives. They never feel safe, always vigilent. This is what hate creates.

I felt to have a look at hate crimes. Hate, in my perspective, comes from intense pain or is blindly learned from parents and society. Typically the intensity of it is unquestioned at its core. The other is hated and the person, group, organisation just want them gone. Yet it is the pain or uncomfortable feelings they want to disappear. Or they are lusting for a feeling of power as they feel powerless, not unlike the concept of bullying. Hence people project outward rather than looking inward as to why they are not at peace.

If you were to regard life as a teacher and that the mystery was trying to teach you something, I wonder if you would regard the ‘other’ differently? I have certainly started to change my thinking and when I get upset by the other, I am starting to look at me, question my beliefs. Truth often comes from so-called enemies as they show you your vulnerabilities. They also reveal their projections, the beliefs they are locked into. Hence, as my world is disrupted, I am believing something that is not in harmony. This is not a superficial statement, you have to contemplate it deeply to understand the true feeling of harmony. For example when I feel angry at an injustice, the anger is in me. My discipline is to not hate. I do not hate Israel or Palestine or the US government or any country, leader, person or belief. I see there are issues that need to be solved as people are not in peace. When people are tired of the old approach, they may open to a newer way of seeing. If I see an injustice and don’t feel angry I am not taking on the pain of others. I am choosing to observe it, look into the reasons why, I go inwardly and ask silently is this love or fear? It doesn’t mean I don’t feel compassion for those injured, I do for those on both sides. As murder, maiming and killing solves nothing, it comes from an energy to teach a lesson and of course you can’t learn peace, respect, happiness from violence. An eye for an eye makes the whole world blind, as Gandhi so wisely stated. When I observe the troubles I start to think creatively.

Hate places me on one side and not the other, yet to serve peace, we must help both sides. How can I help both sides? In the case of Israel and Palestine, weapons and violence will not bring harmony for either side. Those who supply violence do not care about either side, they come to the back door smiling but they are investing in continual conflict which bankrupts countries. Violent approaches exacerbate the feelings of hate as more are intimidated and killed. Hence the vicious cycle fuels revenge and it appears endless.

In schools we teach children not to hit back physically or verbally (non violence) or hate the person but to solve the problem. This is a central precept of conflict resoluton. Moreover, on a deeper psychological level what we hate in another is in ourselves. Denial is the suppression of parts of ourselves that are unacceptable, so the projection (e.g. evil) is accorded to the other and evidence is gathered to prove why they should be hated and violence justified. Yet the energy of hate is within the person. That is the real issue.

After reading some of the middle east conflict and its longevity, hate appears to be the driving energy in this conflict. As the leadership groups and societies have learned to hate each other for blocking them from having what they want – territory, freedom, justice. Therefore, it is for the leadership groups to explore their own hatred and this becomes the road map that leads to real leadership worthy of all people. It is the toughest journey for it requires self responsibility. It is easy to blame and create enemies, yet our thoughts are the real enemies we see when a thought divides people.

The people on both sides are mums, dads, children, grandparents etc. they do not want the violence, to see children or civilians targetted, they want solutions. So if leadership groups assert they represent their people, they have to deal with their own feelings of hate. This becomes problematic typically when males are in these roles, as traditionally they avoid their emotions. To know thyself and be true is central. The tough unfeeling man is a misnomer and this stubbornness to face ones feelings and fears with courage is why the same beliefs keep trotting out. When it is clear there are no real solutions, just business as usual that is stuck.

In the times we are in, if peace and sustainability are the goals, looking into our emotions is the key. This is the field of emotional intelligence which produces wise solutions, it can’t be done intellectually, with clever argument or smooth diplomacy for as this style enters, wisdom leaves the room. To really understand the emotions that drive decision making, one must look at the masks that produce factual evidence masking the anger, frustration, fear and strategic revenge behind crafted policies and actions.

When leadership groups are courageous enough to step into the emotonal field of battle, they look at their emotions, own them, take responsibility and dissipate their personal anger or group think that is the fuel for violent conflict. Emotional intelligence leads to wisdom which guides parties to look at the higher virtues and seek the real benefits for society. One way is to legislate on both sides to turn violence into a crime, sending a signal that violence is no longer a statement of who they are. Hence, moving positively towards civil societies instead of military war zones. Leaders and communities are then in a real position to solve the problems between them in the interests of real peace as security.

The reality to be faced is the people are not leaving or being driven out. Moreover, if the leadership groups do not solve the problem I can see the international criminal court arresting lead individuals, as they are indeed involved in crimes against humanity. The only reason we have laws is because people do not self regulate or take personal responsibility. Men and boys, in particular are taught to disconnected from their emotions and be a strong man. This is an erroneous teaching and is what lies behind many intractable conflicts, in my view. It is to action the spiritual beliefs many say they follow, but the virtuous ones. Not the negative traits. If there is a genuine belief in god, then love is clearly the answer. Love will lead you to the table, love will share, care, reveal and heal. The emotional predisposition will connect people to that higher perspective. At this point people do not appear to be at that level of consciousness to accept they are creating the conflicts, indeed to know what they fear they attract and that they are responsible for the world they see. We are still at the point where the ‘other’ is blamed, revenge teaches lessons and solving the problem is wiping out or making life hell for the perceived enemy. This is the energy of hate.

So let’s look at hate crimes through European perspectives and legislative requirements. The working group appears to have a jewish person and an arab. This could be a starting point by seeing that hate is worldwide and counterproductive.

http://www.osce.org/odihr/36426

HATE CRIME LAWS

Published by the OSCE Office for Democratic Institutions and
Human Rights (ODIHR)
Al. Ujazdowskie 19, 00-557 Warsaw, Poland
www.osce.org/odihr
 OSCE/ODIHR 2009

Preface

The Organization for Security and Cooperation in Europe (OSCE) has taken a comprehensive approach to security since its inception in 1975, as the Conference on Security and Co-operation in Europe. Thus, the work of the OSCE includes not only the politico-military and economic aspects of security but also the human dimension. The human dimension includes the protection of human rights and fundamental freedoms, the promotion of the rule of law and democratic institutions, and tolerance and non-discrimination. The OSCE’s Office for Democratic Institutions and Human Rights (ODIHR), based in Warsaw, is primarily concerned with matters falling within the human dimension.

Crimes motivated by intolerance towards certain groups in society are described as hate crimes. Such crimes have the potential to divide societies, and to create cycles of violence and retaliation. For this reason, a vigorous response to such crimes is necessary.

At the Ministerial Council meeting held at Maastricht in December 20031, the participating States of the OSCE collectively recognized the dangers posed by hate crimes and committed themselves to combating such crimes. Subsequently, OSCE participating States adopted a number of decisions that mandated ODIHR to work on hate crimes.2 The participating States made a commitment to “consider enacting or strengthening, where appropriate, legislation that prohibits discrimination based on, or incitement to hate crimes …”3 This guide has been developed as a tool to assist states in implementing that commitment.

Hate crime laws are important. By explicitly condemning bias motives, they send a message to offenders that a just and humane society will not tolerate such behavior. By recognizing the harm done to victims, they convey to individual victims and to their communities the understanding that the criminal justice
system serves to protect them.

Laws — especially criminal laws — are an expression of society’s values. Hate crime laws both express the social value of equality and foster the development of those values. But this process can only happen if laws are actually enforced. If hate crime laws are not used, it diminishes respect for all laws and weakens the rule of law.

An effective criminal law response to hate crimes requires considering how a hate crime law will work in practice, and whether drafting choices make the law more or less easy to understand and use. This guide, therefore, consistently links legislation to implementation.

It is hoped that this guide will serve as a practical tool in setting effective legislation. States are encouraged to disseminate the guide widely and, with ODIHR’s assistance, to translate it. ODIHR continues to offer its assistance to States that wish to draft new legislation or are reviewing existing legislation, using this guide as a benchmark.

The development and drafting of this guide was shaped by the need to ensure its relevance to the many different legal systems in the OSCE region. A working method was developed that drew on the widely varying histories, traditions and legal frameworks and identified their common elements. This was achieved
by first creating a Working group of legal experts from countries both with and without hate crime laws. The Working Group discussed the scope and content of the guide, and provided detailed commentary on the drafts. Additionally, legal experts from a variety of OSCE countries were invited to contribute their comments and input on the process generally, either by participating in roundtables or by reviewing the drafts. These experts were drawn from a variety of disciplines and were professionally involved in the issue as prosecutors, judges, members of NGOs and policymakers. This process has helped to ensure that the drafts were scrutinized from many different perspectives.

Acknowledgements

This guide was prepared by the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) and co-authored by Allison Jernow, expert consultant on criminal law.

ODIHR is grateful to all those who participated and generously contributed their time to this project. Special thanks are extended to members of the Working Group.

The publication of this guide was made possible thanks to the generous contributions of the governments of Austria and Germany.

Working Group

Paul LeGendre – Human Rights First, the United States of America
Dr. Asuman Inceoglu – Istanbul Bilgi University, Turkey
Michael Lieberman – Anti-Defamation League, the United States of America
Alina Plata – Ministry of Justice, Romania
Dr. Andreas Stegbauer – Judge, Germany
Alexander Verkhovsky – SOVA Centre for Information and Analysis, Russia

Participants at Roundtables

Governmental

Federal Ministry for European and International Affairs and Ministry of the Interior, Austria; State Prosecutor’s office, Azerbaijan; Ministry of Security, Bosnia and Herzegovina; State Attorney’s office and Ministry of Foreign Affairs, Croatia; Ministry of the Interior, Czech Republic; Ministry of Justice and Law Enforcement, Hungary; Ministry of the Interior, Latvia; Ministry of the Interior, Lithuania; Ministry of Justice, Netherlands

Non-governmental

Czech Republic – Miroslav Mareš, Masaryk University; Slovakia – Open Society Foundation; Belgium – Center for Equal Opportunities and Opposition to Racism; International Association of Prosecutors – Elizabeth Howe; European Union Agency for Fundamental Rights

Introduction
Hate crimes are violent manifestations of intolerance and have a deep impact on not only the immediate victim but the group with which that victim identifies him or herself. They affect community cohesion and social stability. A vigorous response is therefore, important both for individual and communal
security.

Hate crimes are distinguished from other types of crime by the motive of the perpetrator; since motive is usually irrelevant in proving the essential elements of a crime, it is rarely investigated in sufficient detail to bring out the real reason for the crime. If a criminal justice system does not use the concept of “hate crime”, the motive is not recognized as an essential element of the offence and the existence of hate crimes will therefore remain invisible.

In fact, hate crimes occur, to a greater or lesser extent, in all countries.4 Countries with effective data collection mechanisms usually show higher levels of hate crimes than countries that do not have effective data collection systems. However, in these countries data from social surveys, non-governmental organizations, and other monitors can show that there is a problem that is not being detected
and addressed by the existing systems.

Whether or not states have passed separate laws to address hate crimes, these crimes do occur and have a significant impact on the victim and the victim’s community. If police, prosecutors, and judges can be trained to understand and respond to these crimes effectively, the damage caused by hate crimes can be
lessened. While there are many states in the OSCE with laws that could lead to increased penalties for hate crimes, their use is inconsistent. Legislation that is clear, concrete and easy to understand will enhance the likelihood that law enforcement officials will use it. Additionally, where effective laws exist they create a framework within which cases can be identified and data collected. Although legislation is only one part of the answer to the problem of hate crime, in combination with other tools it can be a powerful catalyst for changes in social attitudes.

1. A Comprehensive Approach to Hate Crimes

Hate crime laws are only one of many tools that states can use in the fight against hate crimes.

There are many other aspects to a comprehensive national programme to combat bias-motivated violence, including education, outreach and training.

Specific steps would include:

training criminal justice personnel on how to investigate •• hate crimes, work with victims, and prosecute cases;

•• collecting accurate data on crimes with a bias motive, regardless of whether such crimes are prosecuted as hate crimes;
•• providing for redress in civil anti-discrimination law;
•• establishing anti-discrimination bodies with mandates to support victims of hate crime and discrimination;
•• reaching out to communities and fostering relationships between law enforcement and community groups so that victims feel confident to report crimes; and
•• educating the public (especially young people) on tolerance and nondiscrimination.

ODIHR provides tools that can support states in each of these activities, and is able to assist in many ways to help make hate crime laws effective. Details of current assistance programmes are included in Part III, under “ODIHR’s Hate Crime Toolbox for participating States” and “ODIHR’s Hate Crime Toolbox for
Civil Society”.

2. Why is This Guide Necessary?

There are many and varied international and regional instruments that urge improved responses to hate crimes. Laws to tackle such crimes must be drafted with an understanding of the practical consequences of legislative choices. But states that wish to review or amend their own legislation in this field will find few resources.

The purpose of this guide is to provide states with benchmarks for drafting hate crime legislation within a simple, clear and accessible document. While good practices are highlighted and risks identified, a prescriptive approach has been avoided. Hate crimes are specific to their social context, and legislation must recognize this. Additionally, national legal traditions will affect drafting choices. In light of these factors, this guide:

•• sets out the major questions to be addressed by legislators;
•• gives examples of drafting choices made by different states
•• comments on the implications of different approaches;
•• makes recommendations regarding issues (if such recommendations are sufficiently universal or fundamental to be useful); and
•• provides details of further resources which can supplement the information given.

The guide will assist states who wish either to enact new legislation, or to review and improve their current legislation.
Recognizing the importance of legislation to combat hate

UNDERSTANDING HATE CRIME LAWS

1. WHAT IS A HATE CRIME?

Hate crimes are criminal acts committed with a bias motive. It is this motive that makes hate crimes different from other crimes. A hate crime is not one particular offence. It could be an act of intimidation, threats, property damage, assault, murder or any other criminal offence. 6 The term “hate crime” or “bias crime”, therefore, describes a type of crime, rather than a specific offence within a penal code. A person may commit a hate crime in a country where there is no specific criminal sanction on account of bias or prejudice. The term describes a concept, rather than a legal definition.

1.1 The Two Elements

Hate crimes always comprise two elements: a criminal offence committed with a bias motive.

The first element of a hate crime is that an act is committed that constitutes an offence under ordinary criminal law. This criminal act is referred to in this guide as the “base offence”. Because there are small variations in legal provisions from country to country, there are some divergences in the kind of conduct that amounts to a crime; but in general most countries criminalize the same type of violent acts. Hate crimes always require a base offence to have occurred. If there is no base offence, there is no hate crime.

The second element of a hate crime is that the criminal act is committed with a particular motive, referred to in this guide as “bias”. It is this element of bias motive that differentiates hate crimes from ordinary crimes. This means that the perpetrator intentionally chose the target of the crime because of some protected characteristic.

•• The target may be one or more people, or it may be property associated with a group that shares a particular characteristic.

•• A protected characteristic is a characteristic shared by a group, such as “race”, language, religion, ethnicity, nationality, or any other similar common factor.

Which characteristics should be included in a hate crime law is a complex issue that must be resolved by taking into account each State’s own history and circumstances. This question is one of the most significant policy decisions for legislators. The criteria for determining which protected groups to include in legis-lation are discussed in more detail in Part II under “Policy Question Two: Which Characteristics to Include”.

A hypothetical example

What does a hate crime look like?

A school is set on fire. Police initially decide it is a simple arson. However, the school is attended predominantly by Roma children, and investigations reveal that there have been previous incidents of graffiti on the school with anti-Roma slogans such as “Roma get out”.

The perpetrators are caught and admit they were responsible for the fire and the graffiti. They say they were motivated by a desire to “cleanse” their area of “aliens”. The base offence is arson. But the bias motivation, on the grounds of “race” or ethnicity, makes this a hate crime.

1.2 Special Features

Hate crimes differ from ordinary crimes not only because of the motivation of the offender, but also because of the impact on the victim. The perpetrator selects the victim because of his or her membership of a group; this suggests that one member of such a group is interchangeable with any other. Unlike victims of many other criminal acts, hate crime victims are selected on the basis of what they represent rather than who they are. The message that is conveyed is intended to reach not just the immediate victim but also the larger community of which that victim is a member. Thus, they are sometimes described as symbolic crimes.

Hate crimes are designed to intimidate the victim and the victim’s community on the basis of their personal characteristics. Such crimes send a message to the victim that they are not welcome; they have the effect of denying the victim’s right to full participation in society. They also send a message to members of the
community sharing the characteristic that they also do not belong, and could equally be a target. Hate crimes, therefore, can damage the fabric of society and fragment communities.

1.3 Bias or Hate?

Taken literally, the phrases “hate crimes” or “hate motive” can be misleading. Many crimes which are motivated by hatred are not categorized as hate crimes. Murders, for instance, are often motivated by hatred, but these are not “hate crimes” unless the victim was chosen because of a protected characteristic. Conversely, a crime where the perpetrator does not feel “hate” towards the particular victim can still be considered a hate crime. Hate is a very specific and intense emotional state, which may not properly describe most hate crimes. Hate crimes can be committed for one of a number of different reasons:
the perpetrator may act for reasons such as resentment,

•• jealousy or a desire for peer approval;

•• the perpetrator may have no feelings about the individual target of the crime but have hostile thoughts or feelings about the group to which the target belongs;
•• the perpetrator may feel hostility to all persons who are outside the group in which the perpetrator identifies himself or herself; or
•• at an even more abstract level, the target may simply represent an idea, such as immigration, to which the perpetrator is hostile.

Despite the absence of hate towards the target, any one of these motivations would be sufficient to classify a case as a hate crime if the two elements described in paragraph 1.1 above are present.
Case Highlight: Attack on mosque (USA)
Mosque symbolizes Al-Qaeda

On 13 September, 2001, in Seattle, USA, Michael Cunningham drove 25 miles from his home to a mosque, doused two vehicles parked outside with gasoline and attempted to ignite them in an effort to destroy the mosque. Upon being discovered by worshippers, Cunningham pulled out a pistol and shot at them, although none were harmed. Police discovered that Cunningham acted because of anger at the terrorist attacks on September 11, 2001.

While the term “hate crimes” has become common, its use can lead to misunderstandings of the concept. For this reason, in this Guide the word “bias” is used in preference to “hate”. Bias has a broader meaning than hate, and a bias motive only requires some form of prejudice on account of a personal characteristic. Bias can be felt in respect of a person, or a characteristic or an idea (where the victim symbolizes that characteristic or idea).

Case Highlight: Theo van Gogh murder (Netherlands)

Hate crime offender denies feeling “hate”

Theo Van Gogh was a well-known film-maker in the Netherlands who made films and public statements that were extremely critical of Islam. On 2 November 2004, Mohammed Bouyeri approached him in the street and shot him eight times and attacked him with a knife. Two knives were left implanted in his torso, one attaching a five-page note to his body. In court Bouyeri stated that he did not hate his victim, and that this killing was motivated by his beliefs: “I did what I did purely out of my beliefs. I want you to know that I acted out of conviction and not that I took his life because he was Dutch or because I was Moroccan and felt insulted.” He was convicted of murder and sentenced to life imprisonment. No enhancement for bias was applied; hence, the question of motive was never considered by the court.

When preparing hate crime laws, the drafting choices of legislators will determine whether the law requires the perpetrator to feel “hate”. Part II contains a detailed discussion of the consequences of different drafting choices relating to motive under “ Policy Question Three: Defining Motive – Hostility or Discriminatory Selection?”

2. WHAT SETS HATE CRIMES APART?

As described above, hate crimes are special in that the perpetrator is sending a message about the victim and their right to belong to that society. This means that hate crimes have consequences which set them apart from other crimes and which justify a different legal approach.

2.1 Human Rights and Equality

Hate crimes violate the ideal of equality between members of society. The equality norm is a fundamental value that seeks to achieve full human dignity and to give an opportunity to all people to realize their full potential. The status of the equality norm is evidenced by its constant reiteration in human rights documents. The first line of the UN Declaration on Human Rights refers to the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”. It is a theme repeated in most UN human rights instruments, and in the core constitutional documents of almost every state in the world. The violation of these values and norms by hate crimes has a weighty practical and symbolic impact.

Council Decision No. 6, Porto, 2003

2.2 Effect on Victim

By targeting a person’s identity, hate crimes cause greater harm than ordinary crimes. The immediate victim may experience greater psychological injury and increased feelings of vulnerability because he or she is unable to change the characteristic that made him or her a victim. Hate crimes have a significantly deeper psychological impact on their victims, leading to feelings of depression and anxiety.7

2.3 Community Impact

The community that shares the characteristic of the victim may also be frightened and intimidated. Other members of the targeted group can feel not only at risk of future attack, they may experience the attack as if they were themselves the victim. These effects can be multiplied where a community has historically been victims of discrimination.

Social acceptance of discrimination against particular groups is an important factor in causing hate crimes to increase. Hence, although hate crimes can be committed against member of the majority population, it is the most marginalized communities who are disproportionately victims of hate crimes. Thus, in relation to such groups there is a particularly strong symbolic value to adopting and enforcing strong hate crime laws.

2.4 Security Issues

Hate crimes present potentially serious security and public order problems. Hate crimes affect a far wider circle of people than ordinary crime, and have the potential to cause social division and civil unrest. By creating or emphasizing existing social tensions, these crimes can have the effect of causing division between the victim group and society at large. Hate crimes can exacerbate existing intergroup tensions, and play a part in interethnic or social unrest. In internal conflicts, widespread hate crimes usually accompany the escalation phase. In sit-uations where relations between ethnic, national or religious groups are already sensitive, hate crimes can have an explosive impact.

Case Highlight: Kondopoga riots (Russia)

From bar fight to ethnic riots

In the town of Kondopoga in the Karelia Republic of Russia, during the course of the night of 29 to 30 August 2006, a minor fight in a café on the night of 29 to 30 August 2006 was followed by an attack by local gangsters of Chechen ethnicity in which two ethnic Russians were murdered. Three days of rioting followed in which the café, a street market and several shops owned by people of Chechen and Azerbaijani origin were destroyed. Thousands took to the streets demanding the expulsion of all non- Russians. Some far-right activists from other cities travelled to the town to join in these events.

Chechen families fled or were evacuated as the violence continued unabated. The State Duma called for a formal investigation into the events, while the local mayor agreed to demands of rioters to check the identity documents of all ethnic Chechens in the town and to expel any whose papers were not in order. Twelve Russians involved in the riots were found guilty of damaging private and municipal property, and received three-year suspended sentences.

3. WHY HAVE HATE CRIME LAWS?

If hate crimes are treated like other crimes and are not recognized as a special category they are often not dealt with properly. This can manifest itself in ways such as: investigators disbelieving the victim or failing to properly investigate allegations of bias motive; prosecutors minimizing the offence when choosing charges; and courts failing to apply their powers to increase sentences to reflect the motives of the perpetrator.

Hate crimes do not occur in a vacuum; they are a violent manifestation of prejudice, which can be pervasive in the wider community. In cases of poor investigation, prosecution, and punishment of hate crimes, certain patterns can be discerned. Where the crime is committed against an individual who is a member of a stigmatized group (for instance if the group is stereotypically thought of as being involved in crime), this can affect the investigation by painting the victim as being somehow at fault.

It takes very few such cases for affected communities to become disillusioned with the response of law enforcement officials. By contrast, where a prosecution and sentence takes account of the bias motive, such public acknowledgement reassures the victim that his or her experience has been fully recognized. This in turn can inspire trust in other members of the community that hate crimes will not go unpunished. Codifying the social condemnation of hate crimes into law is important to affected communities, can help build trust in the criminal justice system, and thus can repair social fissures.

3.1 Practical Arguments

The practical impact of passing hate crimes legislation can be significant. Ideally, legislation is passed after discussion within government, law enforcement authorities and society at large. This serves to focus attention and raise awareness of the extent and nature of the crimes. The process of passing legislation can thereby improve awareness of and responses to hate crime. Once enacted, implementation of hate crime legislation requires professional training which increases the skills and knowledge of police, prosecutors and judges. This results in improved criminal justice responses to hate crimes. The existence of hate crime laws makes data collection more effective, which gives improved intelligence and policing information, enabling resources to be properly allocated. When hate crime cases are identified, the nature of the problem and the effectiveness of the response become clearer, allowing training and resources to be allocated to those areas most in need.

An improved criminal justice response raises the confidence of affected communities. This leads to information and cooperation from communities who may otherwise be wary of the police. This leads to more investigations being resolved, not only in relation to hate crime but also into other matters in which police require community assistance.

Thus, legislation increases awareness and enables better scrutiny, which in turn leads to more effective implementation and improved police-community relations.

3.2 Theoretical Arguments

There are three main arguments to justify additional punishment for hate crimes.

First, the symbolic value of the law can and should be utilized to demonstrate society’s rejection of crimes based on bias. The enactment of hate crime laws is a powerful expression of society’s condemnation of certain offences as especially reprehensible, and deserving of greater punishment.

Second, criminal law penalizes the harm caused. As noted previously, hate crimes have a greater impact on the victim than ordinary crimes, and they also affect others who are members of the victim’s group. The justification for increased sentences is therefore the additional harm caused both to the individual and the community.

Third, hate crime laws punish the greater culpability of the perpetrator. 8 The perpetrator’s motive makes the crime more serious than if the offence had been committed without such motive. The criminal law frequently imposes increases penalties for acts based not only on their outcome, but on the intent of the perpetrator. This argument therefore assumes that it is the intent of the perpetrator to cause disproportionate harm, or that they are reckless to the risk of additional harm.

3.3 Are Hate Crime Laws Discriminatory?

Some opponents of hate crime laws claim that they protect some groups more than others, and are therefore discriminatory. This is not the case. Although hate crimes are most often committed against members of minority communities, they can also occur against majority communities too.

•• The perpetrators may come from a minority group. •• The target may be selected because they are part of a majority group. •• Both perpetrator and target may be members of different minority groups.

The principle of equality before the law means that hate crime laws do not and should not protect one group over another. For instance, if a hate crime law includes ethnicity as a characteristic, it does not specify a particular one; under such a law a victim could be of any ethnicity, including a majority one.

Hate crime laws apply to everyone

On 15 March 2004, Imran Shahid, a British gangster of Asian origin, was attacked by a group of white youths. The next day he and his friends went looking for “white boys” from that area. They found Kriss Donald, a 15-year old boy. They abducted him and drove him around for two hours, before stabbing him 13 times, setting him on fire and leaving him to die.

After a two-year investigation, a total of five men of Asian origin were convicted of racially aggravated offences, abduction and murder. The judge, when sentencing them to long prison terms, stated “the savage and barbaric nature of this crime has rightly shocked the public … Racially aggravated violence from whatever quarter will not be tolerated…”

4. RELATED CONCEPTS

There are a number of concepts which are closely related to hate crime which are not included within this Guide.

Although genocide is a crime motivated by bias it has been excluded from this Guide, because it has certain special characteristics which make it very different from “ordinary” crimes.

Hate crime laws always prohibit conduct that is first and foremost criminal. And although hate speech and anti-discrimination laws are sometimes confused with laws dealing with hate crime they lack the essential element of a hate crime law: that the same conduct, without a bias motivation, could still be prosecuted as a crime.

4.1 Genocide

The international crime of genocide is sometimes included within discussions of hate crime laws. Although national law may prohibit genocide and other related crimes, such as crimes against humanity, they are not, in this context, described as hate crime laws. Genocide requires an intention to destroy — in whole or in
part – a national, ethnic, racial or religious group.9 This is qualitatively and quantitatively different from hate crimes, as are all crimes under international law that require widespread, systematic acts of violence. The legislative, investigative and prosecutorial issues arising from such international crimes are very different from those which arise in hate crimes. All such crimes are therefore outside the scope of this Guide.

4.2 Anti-discrimination Laws

Anti-discrimination laws are not hate crime laws. The concept of discrimination refers to less favourable treatment of a person on the basis of some prohibited consideration, such as racial or ethnic origin, or gender. Anti-discrimination laws, which exist in many but not all OSCE states, usually relate to workplace discrimination, or discrimination in the provision of goods and services. An act of discrimination such as paying one worker less than another for the same work is unlawful if it is based on discriminatory grounds. The same act without the discrimination would not be unlawful.

While in most jurisdictions discrimination is a civil law matter, in some it carries criminal penalties. Regardless, hate crime laws do not include laws punishing discrimination, because there is no criminal base offense. The first essential element of a hate crime is missing.

4.3 Hate Speech

There are laws that criminalize speech because of the particular content of that speech. The prohibited content differs widely: in some jurisdictions speech that incites hatred or is insulting about certain groups is penalized. Other common prohibitions are on speech which denigrates a person’s or a nation’s “honour” or “dignity”. There may also be restrictions on specific historical subjects, the most notable being laws which prohibit Holocaust denial or glorification of Nazi ideology. This category of speech regulation is described as “hate speech”. But in all these cases, the speech itself would not be a crime without that specific prohibited content. Therefore, hate speech lacks the first essential element of hate crimes. If the bias motive or content were removed there would be no criminal offence. For example, a rock concert featuring songs glorifying violent fascism or the Holocaust would be hate speech, and in some States would be a crime, but it is not a hate crime because there is no criminal base offense. The first essential element of a hate crime is missing.

Direct and immediate incitement to criminal acts is universally prohibited within the OSCE region. Where such incitement occurs with a bias motive it should be categorized as hate crime because there is a criminal base offence. Although hate speech is an issue to which a great deal of public attention is paid, discriminatory or insulting speech has been excluded from the scope of this Guide.

Not only does it lack the element of a base offence, there are extreme variations between the hate speech laws of different countries. Different constitutional and philosophical approaches mean there is insufficient common ground for this guide to provide useful commentary.

However, racist or biased speech before, during, or after a crime, may constitute evidence of motive and should form part of any criminal investigation. Similarly, if the perpetrator has items in their possession, such as books, music or posters that suggest bias or prejudice, this could constitute part of the evidence of
motive.

A common criticism of hate crime laws is that they infringe freedom of speech or amount to a penalty for opinions or attitudes rather than actions. Because the majority of OSCE participating States already have in place laws that restrict certain forms of speech, those criticisms of hate crime laws are not discussed in this guide.

5. THE INTERNATIONAL AND REGIONAL FRAMEWORK

International organizations have made hate crime a priority. A number of human rights treaties make general statements relating to discrimination. Both the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) require states to refrain from race discrimination (including discrimination based on ethnicity or national origin) and to provide their residents with equal protection of all laws. In addition, Article 4 of the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief requires states to “prevent and eliminate discrimination on the grounds of religions” and to “take all appropriate measures to combat intolerance on the grounds of religion …”

Some instruments specifically call on states to criminalize certain acts. Article 4 of CERD imposes an obligation on states to take “immediate and positive measures”; paragraph (a) goes on to require that it should be an offence to “disseminate ideas based on racial superiority or hatred, incitement to racial discrimination as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin” (emphasis added). 10 The committee overseeing CERD has called upon states to define offences with bias motives as specific offences and to enact legislation that enables the bias motives of perpetrators to be taken into account. The European Commission on Racism and Intolerance (ECRI)11 has also called for the criminalization of such acts in its General Policy Recommendations.

The European Union Framework Decision on Racist and Xenophobic Crime was adopted on 28 November 2008.12 The directive recognizes the differences across the EU in laws dealing with racist and xenophobic behaviour, and different approaches to prohibitions on speech. It aims to establish a common criminal law approach, punishable in the same way in all the Member States, and will require states to review whether their existing legislation is in conformity with the directive.

Many of the instruments described here, while condemning acts of racism, also call for legislation prohibiting certain forms of speech; but this is controversial, and OSCE participating States do not share a consensus position on this. Therefore, as noted earlier in this part, this guide deals only with hate crimes and not with “hate speech”.

In a series of recent decisions the European Court of Human Rights has held that states have positive obligations under the European Convention on Human Rights and Fundamental Freedoms to investigate the potential racial motivation of crimes. In the landmark decision of Nachova and Others v. Bulgaria,13 the Court held that there was a duty to investigate possible racist motives behind acts of violence by state authorities, and that Bulgaria’s failure to do so constituted a violation of the non-discrimination provision in Article 14 of the Convention. While the Court has not demanded the introduction of specific legislation against hate crime, it has explicitly recognized that hate crimes require a criminal justice response proportionate to the harm caused. The Court applied these principles in Secic v. Croatia, a case involving an attack by skinheads on a Roma man. There, the Court reiterated that

“… when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.”

6. CONCLUSION

The essential issue is that when criminal cases are prosecuted, the hate motivation should be explicitly recognized and punished. Sometimes when cases of hate crime are prosecuted, the motivation for selecting the victim (such as the victim’s “race”, nationality or ethnic origin) is never mentioned. If this happens, the opportunity and potential for the perpetrator’s punishment to have a deterrent effect on others is lost. The danger is that the message to the victim and the perpetrator is that the state does not view seriously the hate motive which caused the crime.

Victim Testimony: David Ritcheson

Testimony before the United States Congress, 17 April 2007

… I am here before you today asking that our government take the lead in deterring individuals like those who attacked me from committing unthinkable and violent crimes against others because of where they are from, the color of their skin, the God they worship, the person they love, or the way they look, talk or act … I was fortunate to live in a town where local law enforcement authorities had the resources, the ability — and the will — to effectively investigate and prosecute the hate violence directed against me. But other bias crime victims may not live in such places. I ask you to provide authority for local law enforcement to work together with federal agencies when someone is senselessly attacked because of where they are from or because of who they are. Local prosecutors should be able to look to the federal government for support when these types of crimes are committed. Most importantly, these crimes should be called what they are and prosecuted for what they are, “hate crimes”

David Ritcheson, a Mexican-American teenager, was attacked on 22 April 2006 by two men who stripped him naked, burnt him with cigarettes, carved a swastika on his chest, and beat and kicked him before leaving him for dead. One of his attackers had been convicted of two previous racist attacks.

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Mohandas Gandhi

“Only as high as I reach can I grow, only as far as I seek can I go, only as deep as I look can I see, only as much as I dream can I be.”

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