Racist hate crimes: Why do they do it?

Mark Walters
Mark Walters

The massacre of nine African Americans in Charleston by a young man hell bent on starting a “race war” has sent shock waves across the world. Such brutal acts of violence remind us of what seems to be an ever increasingly fractured global society. Despite the wilfully blind trying to maintain the myth of a ‘post-racial society’, many others are no doubt unsurprised by the events of last week given the ongoing problem of racism in the US. However, the US is by no means alone in suffering from post-colonial racism through 21st century reassertions of white supremacy. Currently, Zack Davies, 26, from Mold, Flintshire, in Wales is being prosecuted for the attempted murder of Dr Sarandev Bhambra. Davies is said to have followed his victim into a Tesco’s supermarket where he set about hacking at him with a hammer and a machete almost severing his victm’s hand while shouting ‘white power’ and ‘this is for Lee Rigby’.

Such heinous demonstrations of racism have far-reaching effects on the cohesiveness of our multicultural communities. Unfortunately rather than being one off incidents, these acts of violence represent just the tip of the iceberg of racist hate crime in both the US and the UK. For instance, last year police services in England and Wales recorded a total of 37,484 racist hate crimes; that made up 84% of all hate rime recorded by the police. This figure represents a 5% increase in racist hate crimes recorded in the year 2012-13. Yet police recorded data shows only part of the picture. More representative data provided by the Crime Survey for England and Wales estimates that there is an average 154,000 incidents of racially motivated hate crime per year, the majority of these are personal in nature including assault, wounding and robbery.

So why is there so much racist hate crime? It is difficult to even begin to understand the nature and extent of racially motivated violence without an appreciation of the history of racism in countries such as the US and UK. Though both nation’s pasts are distinct, they are intertwined by histories influenced by the enlightenment philosophies that gave rise to practices including slavery, racial segregation, and more directly to the violent persecution of Black people throughout the US and Europe. The tumultuous history of racism on both continents has inevitably left a nasty residue. Left behind is a system of social, political and economic governance from which white privilege has continued to proliferate within and across generations. That is not to suggest that progress has not been made. The emergence of a civil rights movement in the 20th century has ensured that there are now equal rights in terms of voting, working and use of public spaces.

Nonetheless, racism remains deeply imbedded in contemporary society; in its institutions, its schools, its workplaces and most pertinently in its governments. This means that people of colour remain constantly on the back foot. Their otherness means that they often have to endure everyday forms of discrimination. Some of these become systemic leading to institutional racism as well as to direct expressions of prejudice, including the murder of black men by police officers. Other forms of prejudice are formed by subtle processes of discrimination that are not overtly detectable, such as dirty looks in public spaces, but nonetheless lead to feelings of otherness. In fact, there is some evidence to suggest that racism is getting worse. Recent data from the British Social Attitudes Survey showed that racial prejudice is on the rise again. From an all-time low of 25% in 2001, levels of racial prejudice have since risen to 30% in 2013. It is by no means coincidental that during this period of time that we have also seen the insurgence of nationalist parties such as UKIP, and to the renewed activities of right wing racist groups across Europe.

It is against this backdrop that we observe the continued proliferation of racist hate crimes across the US and UK. Within what continues to be a divided society, some, such as Roof, take it upon themselves to eradicate those deemed as racially ‘different’. American criminologists Jack Levin and Jack McDevitt refer to these perpetrators of hate as “Mission offenders”, as they make it their mission in life to eradicate certain groups of people. They ascribe to an ideology of hatred that fuels and emboldens their hate-motivated acts. While it is likely that Roof embodies such a type of hate crime offender, we do not yet know Roof’s reasons for acting as he did. I do not pretend to know his inner thoughts and what compelled him to sit in a room for almost one hour before pulling a revolver and opening fire. It is likely, though, that he felt immense fear before doing so. It is the emotion of fear that seems to tie most theories of hate crime together. The racist attacker’s fear relates to the threat that others pose to his way of existing as a social being. It is this perceived threat that impels him to act in order to protect his own way of life. Many racists fear that black people will one day take away the power that the white man has built over centuries and which is maintained via social processes and state institutions. This power relates not just to social norms, values and customs but also to economic power and capital. In responding to this threat, some racist offenders take it upon themselves to police the boundaries of acceptable community membership through acts of violence.

Similarly, many of the racist and anti-Muslim attacks that occurred directly after the murder of Lee Rigby can be understood through the lens of fear. Hate crime rates often surge during periods of time when one ethnic or religious group feels under attack from another. Spikes in racist and Islamophobic attacks occurred in the aftermath of 9/11, 7/7 and more recently in the months following the murder of Lee Rigby. These retaliatory acts of hate are sparked by the fear that Muslims are ‘taking over’, and must therefore be resisted. Some politicians and certain media outlets go on to conflate the words ‘Muslim’ with ‘extremist’ and/or ‘terrorist’ as means of social and political resistance. Government agencies go on to disproportionately enforce anti-terrorism laws while some even ban Islamic clothing in public places. For the man on the street, his resistance is often his fists, or worse a machete or worse still a hand gun.

So what is to be done? Histories of oppression and the structural forces that maintain them cannot be reversed over night. But if we are to see fewer incidents such as those in Charleston and Flintshire, change we must. As Dr Martin Luther King so poignantly put it, ‘I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality… I believe that unarmed truth and unconditional love will have the final word.’

Dr Mark Walters is Senior Lecturer in Law at the University of Sussex and Co-Director of the International Network of Hate Studies

The post originally appeared on the INHS website on 30 June 2015, and is reprinted with permission.

 

SAS v France: Does Anything Remain of the Right to Manifest Religion?

Stephanie Berry
Stephanie Berry

The following is cross posted with permission and thanks from EJIL: Talk

 

The finding by the European Court of Human Rights (ECtHR) in SAS v France that the so-called ‘French burqa ban’ did not violate the European Convention on Human Rights (ECHR) will not surprise many in the field of human rights. However, the judgment itself contains a number of developments and departures from the Court’s previous jurisprudence that warrant further consideration. In particular, the conclusion that the right to manifest religion may be restricted on the ground of ‘living together’ presents a worrying development, if this right is to have any practical meaning. (photo credit)

In SAS v France, the applicant challenged the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqaban’), which prohibits the covering of the face in public. The case differs from previous cases concerning the right of Muslim women to manifest religion by wearing religious attire, as the law imposed a blanket ban which extended to the social sphere. The applicant argued that by preventing her from wearing the burqa the ban violated her rights under articles 3, 8, 9, 10, 11 and 14 ECHR. The ECtHR completely dismissed her claims under articles 3, 10 and 11 ECHR, and focused its attention on articles 8, 9 and 14 ECHR, with a notable emphasis on article 9, the right to freedom of religion or belief.

The ECtHR’s judgment in SAS v France, for the most part, is balanced, well-reasoned and provides a thorough consideration of the French government’s justifications for the restriction of the applicant’s right to manifest her religion: public safety and ‘respect for the minimum set of values of an open and democratic society’. The latter category comprises three separate elements: gender equality, human dignity and ‘respect for the minimum requirements of life in society’ or ‘living together’. Whilst public safety is found within articles 8(2) and 9(2) ECHR, as noted by the ECtHR,  ‘respect for the minimum set of values of an open and democratic society’ does not correspond with any of the permissible limitations on article 8 and 9 ECHR (paras 116-7). Consequently, the ECtHR interpreted this justification as falling with the broad ‘protection of the rights and freedoms of others’ (para 117).

While the ECtHR established that the ‘burqa ban’ was prescribed by law (para 112), it did not accept that the ban pursued the ‘legitimate aims’ of gender equality and human dignity (paras 119-120). Specifically, in the context of gender equality, the ECtHR took ‘the view, … that a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in those provisions’ (para 119). This marks a significant departure from the ECtHR’s jurisprudence in the hijab cases. In Dahlab v Switzerland the ECtHR had held that the hijab ‘appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality’ . However, this approach was the subject of criticism, most notably by Judge Tulkens in her dissenting opinion in Leyla Şahın v Turkey:

It is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. (para 12)

Neither Dahlab (a teacher) nor Sahin (a medical student) conformed to the idea of Muslim women as victims.  Yet, in these cases, the ECtHR accepted that the hijab was contrary to gender equality, and disregarded the meaning attributed to it by the applicants. This position both patronised the applicants and essentialised Islam as a religion that discriminates against women. By refraining from analysing the applicant’s choice of religious attire in SAS v France, the ECtHR has avoided repeating these errors. It is contradictory that the ECtHR has been willing to accept that the hijab is contrary to gender equality but not the burqa. Nonetheless, this is a welcome development in the ECtHR’s jurisprudence and it is to be hoped that SAS v France signals the end of the ECtHR making sweeping value judgments about items of religious clothing.

The ECtHR’s dismissal of the French argument that the ‘burqa ban’is necessary to protect human dignity also highlights a change in the approach of the Court.  The ECtHR pointed to the lack of evidence to support the State’s assertion

that women who wear the full-face veil seek to express a form of contempt against those they encounter or otherwise to offend against the dignity of others. (para 120)

The Court further recognised

the expression of a cultural identity which contributes to the pluralism that is inherent in democracy. It notes in this connection the variability of the notions of virtuousness and decency that are applied to the uncovering of the human body. (para 120)

Thus, rather than adopting an essentialised view of Islam, the ECtHR recognised that pluralism entails the recognition of different perspectives.

While gender equality and human dignity were not found to be legitimate aims pursued by Loi no 2010–1192, public safety and ‘respect for the minimum requirements of life in society’ or ‘living together’ were (para 115, 121-2). Consequently, the ECtHR went on to consider whether the restriction on the applicant’s freedom of religion was ‘necessary in a democratic society’ and proportionate to the aim pursued.

As noted in an earlier post (here), the ECtHR in Mann Singh v France accepted restrictions on the right to manifest religion on the grounds of public safety without requiring evidence of the necessity of the restriction. In SAS v France, the ECtHR accepted the justification that ‘a State may find it essential to be able to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud’ (para 139). However, although the burqarestriction pursued a legitimate aim, the ECtHR did not find that it was necessary in a democratic society.  In the absence of ‘a general threat to public safety’, the ECtHR found that a blanket ban was disproportionate (para 139). Consequently, the ECtHR again departed from its previous jurisprudence to exercise a higher level of scrutiny of the legitimacy of the restriction and the evidence needed for a blanket ban. This perhaps indicates recognition of the serious consequences of a blanket ban and the need for particularly weighty reasons to justify it.

Even though the ECtHR was not willing to accept that the restriction on the applicant’s freedom of religion was justified on the ‘usual’ grounds of gender equality and public safety, it was willing to accept that the ‘burqa ban’ pursued the legitimate aim of ‘living together’ under ‘the protection of the rights and freedoms of others’. Despite not being listed in articles 8(2) and 9(2) as a legitimate justification for restricting a convention right, the ECtHR was willing to accept that this ‘far-fetched and vague’ concept (dissenting opinion para 5) fell within the ground of ‘the protection of the rights and freedoms of others’ (para 117). In assessing the scope of the concept, the Court recognised that

the face plays an important role in social interaction. It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. (para 122)

Consequently, after recognising that the restriction only impacted a relatively small number of Muslim women (para 145) and that the law was framed in a neutral manner (para 151), the ECtHR accepted that the practice of wearing the burqa or niqab was ‘deemed incompatible, in French society, with the ground rules of social communication and more broadly the requirements of “living together”’ (para 153). Therefore, the ‘burqa ban’ was proportionate to the aim pursued (para 157) and the applicant’s rights had not been violated.

A number of inconsistencies in the ECtHR’s consideration of ‘living together’ warrant further elaboration. The Court expressly recognised ‘the flexibility of the notion of “living together” and the resulting risk of abuse’, and, thus, the need to ‘engage in a careful examination of the necessity of the impugned limitation’ (para 122). However, the Court’s recognition that it should ‘engage in a careful examination of the necessity’ of the ‘burqa ban’ was contradicted by the acceptance of the ‘wide margin of appreciation’ of France (para 155). It is difficult to see how these two concepts are compatible with one another. In particular, the ECtHR recognised that France had a wide margin of appreciation because the ‘burqa ban’ had been adopted following a democratic process (para 154). However, in Young, James and Webster v United Kingdomthe ECtHR established the position that

[a]lthough individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. (para 63)

Consequently, the democratic process does not per se justify restrictions being placed on the rights of minorities. In fact, in SAS v France, the ECtHR emphasises that it was ‘very concerned by the indications of some of the third-party interveners to the effect that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of 11 October 2010’ (para 149). The ECtHR should in this instance have prioritised ‘a careful examination’ above the ‘wide margin of appreciation’ of the State, as legitimate concerns had been raised regarding prejudice and intolerance against Muslims in French society influencing the adoption of the law in question.  As surmised in the dissenting opinion of Judges Nussberger and Jäderblom:

While it is perfectly legitimate to take into account the specific situation in France, especially the strong and unifying tradition of the “values of the French Revolution” as well as the overwhelming political consensus which led to the adoption of the Law, it still remains the task of the Court to protect small minorities against disproportionate interferences. (para 20)

The concept of ‘living together’ used by France to justify the restriction placed on the religious manifestation of Muslim women pursues a distinctly assimilationist agenda. Although the ECtHR, throughout the judgment, reiterates that ‘pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”’, the ECtHR’s conclusion that there is no violation of the applicant’s rights legitimises a law which eliminates pluralism from the social sphere and, thus, the associated intolerance against Muslims. Indeed, as stressed in the Dissenting opinion ‘… the blanket ban could be interpreted as a sign of selective pluralism and restricted tolerance … It has not sought to ensure tolerance between the vast majority and the small minority, but had prohibited what is seen as a cause of tension’(para 14).

In sum, the decision is a distinct departure from the ECtHR’s jurisprudence in other cases concerning the rights of Muslim women to wear religious attire. The rejection of France’s justifications based on gender equality and public safety makes progress towards rectifying some of the criticisms of the ECtHR’s earlier decisions in this area. However, the recognition of the concept of ‘living together’ as a justifiable ground for the restriction of the right to manifest religion is cause for concern. The concept, which does not find expression in the ECHR, has been prioritised above ‘concrete individual rights guaranteed by the Convention’ (para 2 dissenting opinion). This introduces the risk that the majority will be permitted to dictate that minorities assimilate in order to ‘live together’ instead of pursuing the more integrationist aims of ‘pluralism, tolerance and broadmindedness’.  Although the ECtHR has recognised the ‘risk of abuse’ of this concept, by affording France a wide margin of appreciation, the ECtHR has not heeded its own warning. The concept of ‘living together’ has the potential to proliferate into future judgments concerning the right to manifest religion, in a similar manner to the concept of secularism following the Sahin case (paras 115-16). As noted in an earlier post, the ECtHR must decide whether it is willing to protect the rights of Muslim women to manifest their religion. The addition of ‘living together’ to secularism, gender equality, public safety and the protection of children as permissible grounds of limitation in these cases gives little cause for optimism. What little remained of the right to manifest religion may just have been eroded.

Dr Stephanie Berry is Lecturer in  Public Law at the University of Sussex. She acted as a legal adviser for the applicant in the case of SAS v France. The opinions expressed in this post are the author’s own and do not necessarily represent the views of other members of the legal team.