Taking "Great Care": Defining Victims of Hate Speech Targeting Religious Minorities

By Barth, Whittney | Chicago Journal of International Law, Summer 2018 | Go to article overview

Taking "Great Care": Defining Victims of Hate Speech Targeting Religious Minorities


Barth, Whittney, Chicago Journal of International Law


Table of Contents

I. Introduction..................70

II. Race, Religion, and Hate Speech at the U.N.................72

A. U.N. Protections against Racial Discrimination..................74

B. U.N. Protections against Religious Discrimination.................75

C. Grappling with Freedom of Expression and Hate Speech................77

III. Race, Religion, and Victim Status: Who Gets Standing?............. 81

A. The Toonen Standard..................81

B. ICCPR and the Human Rights Committee..............83

1. A. W.P. v. Denmark...............85

2. Andersen v. Denmark...................87

3. Mohamed Rahbae et al v. Netherlands..............87

C. ICERD and the Committee on the Elimination of Racial Discrimination ...........90

IV. Implications and Recommendations..............93

A. Defining Victims of Hate Speech: Who Counts?................94

B. Defining Victims of Hate Speech: Who Decides?...........97

C. Free Speech and Equality: Considerations for Protection..............99

V. Conclusion.................100

I. Introduction

Protecting individuals from discrimination on the basis of their race and religion has had a place on the U.N.'s agenda since its inception. Often this principle collides with concerns over the appropriate limits of freedom of expression.1 There are clear limits when criminal activity is involved-vandalism of a temple or mosque cannot be adequately defended as expressive.2 Yet debate continues as to how far protection against animus should extend when it comes to verbal attacks. In some countries, like the U.S., hate speech is not criminal unless and until it is paired with criminal conduct.3 In others, only hate speech that rises to the level of incitement is unlawful.4 The U.N., while recognizing the importance of freedom of expression, supports the latter approach.

This Comment focuses specifically on hate speech by public figures that targets people based on protected statuses, namely religion and race. While the statuses of race and religion are intertwined, their evolution and trajectory within the U.N. have been distinct. This Comment explores the manner in which each status has developed through cases brought before two human rights adjudicatory bodies and highlights a troubling result: in some instances, Muslims have been denied standing to challenge state responses to discriminatory remarks on the grounds that their claims amount to actio popularis, or claims brought solely in the interest of the public, as opposed to personal, welfare.5 However, their coreligionists challenging both religious and racial or ethnic discrimination have been granted standing. These different outcomes track the findings of scholars who argue religious affiliation as a protected status is currently more tenuous in international law than other minority statuses.6

This Comment argues that international adjudicatory bodies should apply the same amount of deference to group standing when petitioners claim inciteful hate speech has targeted them because they are a religious minority as when petitioners claim that hate speech has targeted them because they are both a religious and racial minority. The need for this is illustrated by the odd results of several U.N. Human Rights Committee decisions involving Muslims living in European countries.7 On at least two occasions, petitioners who brought a claim involving hate speech directed at Muslims were not granted an opportunity for their case to be heard on the merits. However, on another occasion, different petitioners who brought a claim involving hate speech that attacked them as members of a religious and racial minority were allowed to proceed with their case. The latter result aligns more closely with the outcome of similar cases heard by the Committee on the Elimination of Racial Discrimination, whose broad standard for determining victim standing was actually borrowed from the Human Rights Committee. …

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