Hate Crime and Human Rights: A Complicated Story

This spring, I posted a short pointer to some online writings by David Brax (here, here, here, here, here, here, here), who is working together with myself and people at the Universities of Central Lancashire and Frankfurt in the European Commission sponsored project When Law and Hate Collide. Our main task in this project is to advise EU on what a pan-European concept of hate crime should look like and what sort of policy regarding hate crime that can be justified on a European level. As so often is the case with European projects, a background for the need to have some research done is vast differences between different EU member states as to how some topic is treated. So, a basic problem is that it is unclear, to say the least, what a hate crime is supposed to be from a European perspective.

This is also admitted by many national agencies and multinational organisations responsible for monitoring hate crime, provide statistics, support action against hate crime, and so on. They all basically admit that they do not know precisely what a hate crime is, but as a remedy some related features are often held out to be repeatedly present as what may be called "markers" of a hate crime.

One of these features is that a hate crime is not – repeat not – a particular type of crime. A hate crime is an ordinary crime (murder, assault, theft, harassment...) connected to some sort of factor signalling that the perpetrator commits the crime in conjunction with holding a particularly biased or disparaging attitude or view towards the victim in virtue of a perceived membership of this victim to some particular social group. In some cases, there are attempts to limit what may be entailed by this reference to membership of a social group, and in many European countries (such as, e.g. Germany or the U.K.) such limits are indeed in place. However, in other cases, like Sweden, the legal statutes defining hate crime in the national law are open ended in this respect, or (as in the case of Belgium and Poland) so inclusive that all social groups imaginable would seem eligible.

Besides this, however, it is very regularly underscored as a background to this sort of explanation that, due to the definition of a hate crime in terms of a crime committed in conjunction with a certain sort of negative bias against the victim, there is a close connection between the notion of a hate crime and that of a human rights offense or violation. Sometimes it is even said that hate crimes are acts that violate the human rights of the victim. This, however, we have found to be problematic and in need of some scrutiny.

First, it is clear that when the notion of human rights is used in this context it refers primarily to such rights as defined in, e.g., the UN Declaration on Human Rights or the European Convention of Human Rights. Now, these rights are all legal rights that are enjoyed by individuals or citizens against states, governments or official institutions representing such entities. In other words, the only one who can commit a human rights violation is an entity of the latter kind and, thus, a hate crime cannot, by conceptual necessity, be a human rights violation.

Second, the human rights framework in international law has indeed led to the emergence of the concept of crimes against humanity, which are seen as very closely linked to the concept of human rights and the institutions of the declarations mentioned above. However, it is also clear that hate crimes are not crimes against humanity. It may very well be that most crimes against humanity (genocide, ethnic cleansing, systematic torture, and so on) are also hate crimes. However, most hate crimes are certainly not crimes against humanity, but mundane fellonies of the sort unfortunately occurring in all societies on a daily basis.

Third, a hate crime cannot be characterised as a rights violation of a certain sort even if we forget legal rights, and instead consider basic ethical ideas about moral rights. Now, of course, all those crimes that may become hate crimes in the presence of the further factor of a negatively biased attitude against the victim on part of the perpetrator would, of course, be considered to be rights violations on this basis. Moral rights hold between people, and when one person kills or assaults another, steals her property, and so on, he violates the basic right of being respected as a person (there are exceptions, I know, but these are not important here). However, these acts do not become more of rights violations in the presence of a negatively biased attitude. They already are fully fledged rights violations. So, again, being a human rights violation cannot be what distinguishes a hate crime from other crimes.

Having said all this, it is clear that if someone was to say: "hate crimes have nothing to do with human rights", this would strike also me as both odd and false. However, the relationship between the notions of hate crime and human rights is less straightforward than simply hate crimes violating human rights (as we have just seen). So, the notions do connect, but not in a necessary conceptual or logical way. My suggestion is that they connect through a number of ethical policy premises about the responsibilities of governments and states to ensure and protect the human rights of their people. Here's a sketch of how I think:

Human rights (in the international legal sense) prescribe states to provide their population with a certain sort of protection and security. This, among other things, includes people to be able to enjoy the freedoms of opinion, assembly, life-style et cetera that they have a right to. But if the state allows individuals to interfere with the execution of these freedoms of other people, it does not perform this fundamental task properly. This is the ultimate motivation for criminal law and related preventive policies. This, in itself, does not single out hate crimes as special besides other crimes. Moreover, the very same human rights allow people to hold negatively biased opinions of one another and even prescribe that the state should protect also this instance of freedom of opinion. This order of things, however, is motivated by the upholding of a fundamental distinction between holding an opinion and acting it out. This distinction is fundamental to any society that is to combine the tenets of liberal democracy with the basic need for peace, law and order (without which no society could ever live up to the prescriptions of human rights laws). Thus, when people don't respect this distinction in a way that makes them commit a crime, they attack not only the victim of this crime, but become a potential threat to general social stability (and, thus, to the well-being of all). For sure, a single hate crime perpetrator will hardly throw a well-ordered society into chaos, but if he was to become just one among many, this would be a terrible threat. For this reason, society has – by reason of its obligation to respect and protect human rights – an obligation to take extra action against such tendencies.

This line of reasoning may be extended, bringing in particularities of a nation, such as certain social groups already being the victims of prejudice and persecution. In that case, hate crimes against members of those groups become even more urgent business for the state from a human rights perspective. But it still holds that none of these hate crimes are human rights violations or offenses. Rather, they are crimes surrounded by certain factors that make them extra serious from the perspective of a state whose mission it is to observe the prescriptions of human rights statutes.

For those curious about hate crime, here are a few sources of information:

FBI Hate Crime Statistics
EuroSTAT statistics on Hate Crime (scroll down)
Human Rights First on Hate Crime
OSCE: Office for Democratic Institutions and Human Rights