A central task for democratic societies is to counteract ideologies and actions based on racism. What kind of legislation (civil, penal or administrative) best serves such a purpose? How can society handle the contradiction between legislation that prohibits racist expressions and actions – including the banning of organisations – and the need to protect fundamental democratic principles? To what extent should the ideological motive of a crime be regarded as an aggravating circumstance when deciding the penalty? It is also important to consider the rights, status and needs of victim groups.

Moderator:
Dr. Peter Nobel, UN Committee for the Elimination of Racial Discrimination, Sweden.

Panel:
Mr. Bob Purkiss M.B.E., Commission for Racial Equality, UK; Dr. Hans-Jürgen Förster, Federal Ministry of Interior, Germany; Prof. Daniel Tarschys, Stockholm University, Sweden and Dr. Jeanine Cogan, Center for Research, Policy & Action, USA.

Dr. Peter Nobel opened the session by suggesting a few questions for the panellists and the audience to focus the session on and presented the problem of criminal law – which is usually considered the most effective legislation – and its depency on the priorities and the efficiencies of the police and the public prosecutors and its problems of the burden of proof. He also talked of other aspects to be considered, for example the right of the victim of racial discrimination to seek effective legal remedies and also for the victim to seek adequate reparation for satisfaction. Mr. Nobel pointed to Articles 4 a and b of the United Nations Convention on the Elimination of all forms of Racial Discrimination and highlighted the difficulty on the one hand, of enacting legislation directed at expressions and acts of racism and intolerance, and, on the other, the defence in a democratic society of the right of free speech, free opinion, free association etc. He finished his introduction by stating that it is not only a very good idea but the obligation of the Governments and the States Parties to look into the conventions which they have ratified and there find guidance on how to solve their respective problems.

Mr. Bob Purkiss, the first of the four panellists, described his experience of working with anti-discrimination legislation in the United Kingdom and of his European and British experience of putting legislation into practice. Mr. Purkiss quoted the United Kingdom as a good example of how race-discrimination legislation can continue to be improved, as the UK has had an anti-discrimination law in place for more than a quarter of a century now. At the end of last year, however, this law was both extended and improved in the light of experience. Mr. Purkiss talked of the importance of exploring the visions to ensure the most effective implementations of anti-discrimination legislation, and suggested a combination of persuasion, prevention, promotion and prosecution. He talked of the importance of the role of the establishment, particularly of public bodies, in preventing discrimination, promoting equality, facilitating complaint, providing independent assistance for victims and – through law and codes of practice – offering political guidance. He also focused on the importance of tackling institutionalised racism through monitoring arrangements, through impact assessments of proposed policies and through regular monitoring of the impact and outcomes of existing policies and practices.
Mr. Purkiss emphasised that preventive and promotional measures have a crucial role in making legislation work in practice and in achieving a long-term cultural and practical change. Mr. Purkiss also told us how every organisation in the UK today that carries out a public function must examine its qualities and practices, to ensue that it does not disadvantage any racial group but promotes equality of opportunity. And that duty means that for the first time public bodies are not only required to avoid racial discrimination but also must tackle institutional racism, and must work actively towards giving greater equality, and this, said Mr. Purkiss, is imperative.

Dr. Hans-Jürgen Förster described his experiences of combating racism and xenophobia with legislative instruments in Germany. He talked of the importance of both repressive and preventive measures, but stated that criminal law in particular is important for counteracting discrimination as it responds to acts of the highest sociol-ethical non-value. Dr. Förster mentioned some of the different penal provisions applicable, especially geared to right-wing extremism, such as the dissemination of means of propaganda, the use of symbols, greeting, slogans and songs and denial of the Holocaust. The Federal Court of Justice, the highest German court for decisions in criminal matters, also holds that xenophobic motivation as a factor can aggravate the relevant punishment. Mr. Förster emphasised the importance of speedy criminal proceedings concerning xenophobic issues, as fast judgements have a proven preventive effect on potential new offenders, he said. Dr Peter Nobel , UN Committee for the Elimination of Racial Discrimination, Sweden. M.B.E., Commission for Racial Equality, UK; , Federal Ministry of Interior, Germany; , Stockholm University, Sweden and , Center for Research, Policy & Action, USA. opened the session by suggesting a few questions for the panellists and the audience to focus the session on and presented the problem of criminal law – which is usually considered the most effective legislation – and its depency on the priorities and the efficiencies of the police and the public prosecutors and its problems of the burden of proof. He also talked of other aspects to be considered, for example the right of the victim of racial discrimination to seek effective legal remedies and also for the victim to seek adequate reparation for satisfaction. Mr. Nobel pointed to Articles 4 a and b of the United Nations Convention on the Elimination of all forms of Racial Discrimination and highlighted the difficulty on the one hand, of enacting legislation directed at expressions and acts of racism and intolerance, and, on the other, the defence in a democratic society of the right of free speech, free opinion, free association etc.

He finished his introduction by stating that it is not only a very good idea but the obligation of the Governments and the States Parties to look into the conventions which they have ratified and there find guidance on how to solve their respective problems. , the first of the four panellists, described his experience of working with anti-discrimination legislation in the United Kingdom and of his European and British experience of putting legislation into practice. Mr. Purkiss quoted the United Kingdom as a good example of how race-discrimination legislation can continue to be improved, as the UK has had an anti-discrimination law in place for more than a quarter of a century now. At the end of last year, however, this law was both extended and improved in the light of experience. Mr. Purkiss talked of the importance of exploring the visions to ensure the most effective implementations of anti-discrimination legislation, and suggested a combination of persuasion, prevention, promotion and prosecution. He talked of the importance of the role of the establishment, particularly of public bodies, in preventing discrimination, promoting equality, facilitating complaint, providing independent assistance for victims and – through law and codes of practice – offering political guidance. He also focused on the importance of tackling institutionalised racism through monitoring arrangements, through impact assessments of proposed policies and through regular monitoring of the impact and outcomes of existing policies and practices.

Mr. Purkiss emphasised that preventive and promotional measures have a crucial role in making legislation work in practice and in achieving a long-term cultural and practical change. Mr. Purkiss also told us how every organisation in the UK today that carries out a public function must examine its qualities and practices, to ensue that it does not disadvantage any racial group but promotes equality of opportunity. And that duty means that for the first time public bodies are not only required to avoid racial discrimination but also must tackle institutional racism, and must work actively towards giving greater equality, and this, said Mr. Purkiss, is imperative. described his experiences of combating racism and xenophobia with legislative instruments in Germany. He talked of the importance of both repressive and preventive measures, but stated that criminal law in particular is important for counteracting discrimination as it responds to acts of the highest sociol-ethical non-value. Dr. Förster mentioned some of the different penal provisions applicable, especially geared to right-wing extremism, such as the dissemination of means of propaganda, the use of symbols, greeting, slogans and songs and denial of the Holocaust. The Federal Court of Justice, the highest German court for decisions in criminal matters, also holds that xenophobic motivation as a factor can aggravate the relevant punishment. Mr. Förster emphasised the importance of speedy criminal proceedings concerning xenophobic issues, as fast judgements have a proven preventive effect on potential new offenders, he said.

Dr. Förster talked of the problem of the Internet as a forum of xenophobic ideas, such as anti-Semitism, neo-fascism and Holocaust denial. To enter such ideas on the Internet in Germany is punishable, and since last December the German criminal law is also applicable if “the Auschwitz lie” is disseminated from abroad to Germany via the Internet. Dr. Förster emphasised the importance of agreeing on a minimum of cross-border penal provisions in order to effectively counteract hate speech on the Internet. Concerning civil and public law Dr. Förster talked of the “Act on Compensation for victims” and how the Federal Government this year has allotted an additional DM 10 million as immediate financial assistance for victims of right-wing violence. He also stressed the importance of civil institutions and their fast and unbureaucratic assistance to victims. German public law includes bans on associations, political parties and specific extremist assemblies as the civil law strives to fight everyday discrimination and claims that persons may not be denied access, or given access on less favourable terms, to employment, accommodation, services or facilities on account of the colour of their skin, their race, ethnic origin, descent, religion, nationality or gender. Dr. Förster finished by talking of the goal of successfully integrating foreign citizens into society and how this integration requires much more than the absence of discrimination.

Prof. Daniel Tarschys talked of how the last five years have seen a revolution in human rights and pointed to the Council of Europe and its ECRI (European Commission against Racism and Intolerance) as playing a major part in this. He talked of how it has grown in power through an enlargement (43 countries today), how its Court control mechanisms are now better known and utilised (10,000 cases a year today), how case law has accumulated and been enriched and therefore gives much better guidance today, how additional protocols have been added, and how supplementary conventions with specific review mechanisms have improved the intergovernmental technique of the Council of Europe. Prof. Tarschys mentioned some of the several advantages of this cross-border technique in its democratic legitimacy and gradual accession, its cross-national comparison in international studies, and its ability to make country by- country reports and thereafter design suitable suggestions and monitoring systems for different nations and their different needs. One can also use friendly harassment on nations. Since the 1990s, xenophobia, anti-Semitism, racism and intolerance have been one of the key targets of the Council of Europe through youth campaigns, educational activities and the work of ECRI, according to Prof. Tarschys. He finished by ephasising the importance of using “the whole keyboard of the piano” in combating xenophobia, intolerance and discrimination meaning that we need both “hard law” and “soft law” as well as various forms of education, information, reporting, monitoring and international.
Dr. Jeanine Cogan , the last of the panellists to address the topic of the session, focused her attention on the so-called “hate crimes”. She told of how this new category of crime emerged as a result of the “epidemic” of racial, ethnic and religious discrimination and intergroup conflicts that spread across the U.S. in the early 1980s. Activists and lawmakers wanted to criminalise bias-motivated intimidation and violence and “hate crimes” were defined as violent acts against people, property or organisations specifically because of the group to which they belong or identify with. Rather than the victim being chosen simply at random, hate crime victims are selected on the basis of their group membership or identity, Dr. Cogan explained. Since the 1980s a number of social movements have fought for the appropriate response to and prevention of violence motivated out of bigotry, and thereby the hate crimes have received the attention of the American public as well as of all levels of government, from local to federal. Dr. Cogan explained that the legal definition of a hate crime depends on the hate crime law considered, but what makes a crime a hate crime is the existence of bias or prejudice of the perpetrator who committed the crime against an individual based on the victim's real or perceived social grouping. As race, ethnicity, religion and national origin usually are groupings included, as targets of hate crime legislation, gender, disability and sexual orientation may not always be, Dr. Cogan said.
Dr. Cogan went on to note the difficulties with hate crimes as they could be considered and valued as more important and more serious than none-hate crimes, and one could question if hate crimes were really deserving of a separate and unique policy response. In defence of a separate hate crime legislation Dr. Cogan pointed to the way hate crimes damage not only the individual victim, but also the victim's social grouping as well as the community as a whole, since hate crime acts are not only crimes but are also meant to function as “messages”. According to Dr. Cogan, research shows that a hate crime victim suffers more severe psychological consequences than a person who experiences a random crime of similar severity, and needs longer time to overcome their victimisation. Therefore the motivation for a special hate crime legislation, as it serves both a practical and symbolic role and offers a tool to combat discrimination as well as showing what will not be tolerated in society. Dr. Cogan further explained that the hate crime laws do not yet work as well as they should, as white men use them most. She finished pointing out that we need to create a culture of respect through education, by debunking myths and challenging governments to repeal the acts of intolerance laws.

Comments from the audience:
Margareta Wadstein (ECRI, Sweden) thanked the panel for broadening the perspectives including institutionalised racism, gender and sexual orientation as these things are very much linked, she said. She criticised the general habit as well as the conference on focusing on the extremes too much as this easy creates a “them-versus-us feeling” and that makes us forget that we are all part of it if a change is to come about. She also pointed out, concerning hate crimes and the difference between racism and racial discrimination, that the police, for example, often have difficulty deciding what is to be considered as a discrimination crime or not. She concluded it was her conviction that one cannot combat discrimination without focusing on behaviour and legislation and enforcement of that legislation. She finished by giving food for thought, quoting an American manager as saying: “I could very well hire a racist as long as he does not discriminate.” Dr. Cogan responded by agreeing on the danger of putting too much focus on the extremes, and she also talked of the importance of starting the change of hearts at an early age already in school, maintaining that teachers must respond when faced with discriminatory opinions coming from students, no matter how young. Mr. Purkis commented by once again pointing out the importance of focusing on the institutionalised racism, the established values we grow up with, and argued that these, being hidden outside society, were more dangerous.

Dr. Hannes Tretter (Ludwig Boltemann Institute for Human Rights in Austria) asked Dr. Cogan if any legal provisions existed or had been attempted, providing for mediation and conflict resolution between the perpetrator and the victim on a voluntary basis. Dr. Tretter described how his institute was asked two years ago, by the Austrian government, to draft an anti-discrimination law, and that they were now suggesting a procedure based on mediation, so that the victim and the perpetrator can reach an amicable settlement. He wondered if there was anything comparable in the United States.
Dr. Cogan said she was not quite qualified to answer the question but that the current hate crime legislation did not include any such mediation component, though mediation was starting to grow in popularity in various states and concerning certain issues. Dr. Nobel added that mediation might play an important role in some countries and be completely neglected in others.

Hans Ytterberg (Ombudsman against Discrimination because of Sexual Orientation) thanked all the panellists for interesting presentations and commended Dr. Cogan's very powerful statement of the importance of breaking with the conspiracy of silence. He also defended hate crime legislation on the grounds that that hate crimes, besides affecting the individual victim and the whole community, are also an attack on the very fabric of civilised society, based as it is on respect for human rights. That was why, for a number of years, the Swedish security police had been monitoring hate crimes under the specific classification of a threat to national security. Mr. Ytterberg also commented on Prof. Tarschys' reference to Protocol 12 of the European Convention on Human Rights, and agreed with him in hoping that it would enter into force and be ratified, as he also mentioned problems in this respect. Mr. Ytterberg finished by asking the panel to comment on the possibility of enlarging the mandate of ECRI, which he considered very important for combating intolerance.

Jose Alberto Dias (Swedish National Integrational Office) asked the panel about the relation between racism and discrimination.
Adam Tyson (the European Commission) pointed out that one of the key aspects when talking about legislation is the importance of legal remedy, as many national legal systems fail in this respect. Mr. Tyson also stressed that case law was extremely important and that it was important to share each other's experiences, as well as ifor publicity should be given to cases of discrimination.

Dr. Nobel finished the session by pointing to the importance of ECRI's work and explaining how useful their reports are, Dr. Cogan wanted next year's conference to focus on the issue of sexism, Prof. Tarschys underlined the need to be clear, nuanced and not too wide in creating laws for combating intolerance and stressed the importance of meeting particular concerns from different countries on these issues. Mr. Purkiss, lastly, stressed that though racism and racial discrimination go hand in hand, the two are nevertheless not the same thing. He argued that we should focus on combating hidden attitudes and unwitting procedures, because these were the most dangerous. He suggested preventive measures, compensation to organisations, making cases of discrimination and going public about them, but most of all – being honest with ourselves.

Pia Andersson