Racism, Racial Discrimination, Xenophobia and Related Intolerance
Four Areas for International Action
Racism is an instrument in the generation of conflict, the fomenting of exclusivist nationalism, and a motor for the disintegration of states and slaughter among neighbors. Governments, political movements, and violent armed groups continue to use racial discrimination as a tool for the political mobilization of supporters, and a framework for the exclusion, exploitation, oppression, and even extermination of others. Whole populations may be denied the full prerogatives of nationality in their own countries--or stripped of their citizenship by political fiat--because of their race or descent. Racism can also intersect with gender discrimination, to diminish or negate women's exercise of their human rights.
As economic globalization, regional economic crises, and political upheaval have stimulated movement across national borders, migrants and refugees in particular are assailed by new measures of discrimination on an enormous scale. Trends in human population movements and toward an increasingly international labor force make it particularly urgent to address racism as a factor in the generation and management of migration and refugee flows and in its relation to international and domestic conflict. Women migrants suffer particularly, in trafficking and forced prostitution, in the lack of protection in the work place, and in constraints on family life imposed by migration and the specter of statelessness.
Government policies and practices may have a pernicious discriminatory effect even where discriminatory intent is not clearly established. Such public policy and administrative practice can effectively bar members of groups defined on racial or related grounds from the enjoyment of their fundamental human rights no less than do systems of overt discrimination.
The atrocities of apartheid, genocide, slavery, caste-based violence, and what has come to be known as "ethnic cleansing" are at the extreme end of the spectrum of racial discrimination. So too is the discriminatory treatment of indigenous peoples that threatens their very survival. Progress in international justice to fight impunity for these extreme forms of racism, and in international action to protect vulnerable populations gives us new tools in the campaign toward its eradication.
This conference must address the extreme, overt, intentional, and often violent policies and practices of racism that suppress the exercise of the rights of whole peoples. It must
further explore and expose the ways in which race and descent combine with gender to curtail the rights of women. The international community must support the new mechanisms of international monitoring, protection, and justice as a bulwark against these forms of racism. But the conference must also address the racist effect of government policies and practices that affect hundreds of millions of people even when racist intent is not clearly present.
The focus of Human Rights Watch in the lead up to the 2001 conference is upon four areas in which the racist effect of government policies and practices is presently vitiating the rights of huge sectors of humanity. In each of these areas, unlike the unabashed racism of apartheid, de jure segregation, or genocide, racist intent is muted, diffuse, or even absent. Even the racist effect of discriminatory practices and policy is largely denied. Yet the impact of these policies and practices, both those established by law and administrative act and those resulting from a failure of state action, strips whole peoples of their rights. This racist effect is a consequence of:
To address these issues, Human Rights Watch will be exploring practical measures behind which to mobilize international action. The broad appeals will include:
The U.N. World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance offers the international community a unique opportunity to devise new and practical measures to address specific problems of discrimination. International standards already provide a firm foundation for the elimination of racial discrimination, but new standards are required, backed by new commitments to monitoring, reporting, and remedial mechanisms to ensure implementation of domestic and international standards and make real progress to this end.
Racism, Nationality, Statelessness, and the Rights of Citizenship
In many parts of the world, children--and adults--may be denied citizenship and corresponding civil rights in their own countries, or be stripped of citizenship, solely because of their race or national descent. In some cases this has applied to populations that have been present in a country for generations, often predating their country's independence. In others, children born in their mother's country of nationality may be denied that nationality because women can not transmit nationality, rendering the children potentially stateless on gender grounds, or forced to take the nationality of a non-national father.
The racially discriminatory aspects of policies to acknowledge nationality on the grounds of blood ties alone (jus sanguinis), with no provision for nationality to be conferred on the basis of place of birth (jus soli) or on other grounds, require particular scrutiny. The rigid and exclusive implementation of jus sanguinis, if in practice implemented along racial lines, can serve to deny whole populations of rights in what is often the only country they have ever known.
Discrimination on the basis of gender is often combined with racism as a discriminatory factor for children in states that define citizenship in terms of racial or national "purity." As the rights of citizenship are restricted to the children of male nationals, female citizens are discouraged from marrying men of a distinct race or nationality because their children would be denied citizenship.
International conventions on statelessness are inadequate to address this denial of citizenship rights to children and adults on national or racial grounds. Denial or removal of the rights of citizenship can be a means comprehensively to deny a population a broad range of human rights. Short of physical extermination or expulsion from one's country, this denial of civil rights reduces a population to the most extreme vulnerability to abuse and exploitation. The issue is most dramatic as it concerns children's rights to a nationality and to the full exercise of human rights.
Children without recognition as citizens in their own country may be denied a right to education, to social services, to many areas of employment as they reach adulthood, or even to documents establishing their identity. In some cases, governments informally recognize members of particular national minorities as distinct from foreigners, while according them a restrictive status short of full recognition as nationals: as if citizens without citizenship. Democratic participation in the regulation of their own community's affairs is impossible for this disenfranchised population.
Naturalization policies, by which non-nationals receive citizenship, may be wholly or largely founded on discriminatory grounds. Denial of citizenship on racial or national grounds may be a norm even for people who have established deep roots in a country and have retained no connections with any other. In many regions, changing patterns of migration and catastrophic movements of refugees fleeing war or ethnic persecution have moved large populations in an ebb and flow across national boundaries. Over decades these population movements have resulted in large populations putting down new roots in countries to which they are relative newcomers, but who have no other country to return to. The children of these upheavals are the most vulnerable to discriminatory nationality policies and practices. The denial of their right to a nationality turns upon their race or national origin.
In the Middle East, statelessness most frequently stems from the deprivation of nationality, often as a result of conflict over the composition of a state and its borders. A situation of citizens without citizenship also derives from the failure to establish nationality at crucial junctures during the process of state formation, or the stripping of nationality, a process that also sometimes accompanies or follows international armed conflict. Government policies often promote the denial of citizenship among particular groups to further other political aims. Discriminatory government policies serve to exclude unwanted groups, or to attempt to force out a group perceived as unsupportive of the government while encouraging the naturalization of other groups perceived as more supportive. Long periods of economic dependence on cheap migrant labor in many countries has also fostered anti-foreigner sentiment, and sometimes produced statelessness when migrants and their children lose their ties to their original nationality but are unable to claim nationality in their state of residence. These groups are particularly vulnerable during economic downturns and political crises.
The denial of citizenship is exacerbated by the persistence of nationality laws that typically make it difficult for foreigners to gain nationality, even when an individual is born in a country or resident there for many years; prevent women nationals from passing their nationality to their
children; and prohibit dual nationality among citizens of Arab states. Taken together, these factors have produced large populations whose statelessness is inherited, and often negatively impacts on individuals' ability to vote, work, register marriage, births, and deaths, own or inherit property, receive government health and educational benefits, or travel.
Particular calamities of racially exclusive citizenship policies have occurred after states have broken up, as successor states have acted to privilege particular racial or national groups to the exclusion of others, as well as in states in upheaval which have acted to strip of their recognized nationality whole ethnic or racial groups. This has been a particular issue in much of the former Yugoslavia, in some of the independent states of the former USSR, in the Horn of Africa, and in Africa's Great Lakes region. Discriminatory nationality and citizenship policies and practices in these circumstances are frequently accompanied by racist violence.
Racism, Criminal Justice, and Public Administration
Racial, ethnic, and related identities can be a powerful source of cohesion, values, and identity that strengthen and enrich individual and community lives. These identities can also be manipulated for political gain, employed to oppress and destroy, and used as criteria for determining whose rights are respected and whose are obliterated. Although the international community cannot remove all race and descent-based doctrines from political discourse, it can and must work to ensure that the power of the state does not promote race or descent-based hatred and is not employed to perpetuate and deepen race or descent-based distinctions in the exercise of basic rights.
Not all government actions that have racially disparate impacts constitute internationally prohibited discrimination. In some cases, the discrimination is overt, intentional and explicit; in others, ostensibly race neutral policies have an unjustified disparate impact. In some cases policies are motivated by express ethnic hostility; in others they reflect a "malign neglect," a refusal to take seriously the need to secure equal treatment of all racial and ethnic groups.
The Committee on the Elimination of Racial Discrimination, in its General Recommendation on article 1, paragraph 1 of the Convention, concludes that "Non-discrimination, together with equality before the law and equal protection of the law without any discrimination constitutes a basic principle in the protection of human rights." It observes that this is confirmed in article 2, paragraph 1 (c), which obliges States "to nullify any law or practice which has the effect of creating or perpetuating racial discrimination." (Emphasis added.) As a consequence, it declared that in considering whether a differentiation of treatment constitutes discrimination, "it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin." (Emphasis added.)
In many societies, racism is most evident in the area of criminal justice; in the administration of social services, education, and public housing; and even in the restrictions of the freedom of movement and the right to live in a particular area of one's own country.
In the states of the former USSR, control of movement and residence continues to be exercised at the national, provincial, or municipal level. In Russia, the administration of these restrictions often assumes racial dimensions, while implementation of residency controls through the propiska system serves as a pretext for the police harassment, arbitrary arrest, and extortion of people distinguished by their racial characteristics.
In the United States, race and the criminal justice system are a matter of continuing national concern. The examples of discriminatory impact are numerous: African-Americans and other minorities report police abuse more frequently than whites. Juvenile offenders from minority communities are more likely to be arrested and confined in detention facilities than white juveniles who have committed the same offense. Although there are far more white drug law offenders than black, ostensibly race neutral laws designed to curtail drug abuse have been enforced in ways that have targeted black communities and sent disproportionate numbers of black men and women to prison on drug charges. Blacks who murder white victims have the highest chance of ending up on death row; whites who murder blacks have the lowest chance. In some states, police engage in explicit racial profiling--police stop a person on the assumption of possible criminal activity simply because a person is black or Hispanic.
In Western Europe, where migration and increased movement within the European Union has gradually made populations less homogenous, this has been accompanied by xenophobia, racist violence against migrants and national minorities, and the emergence of political movements founded on the manipulation of racism fears and the promotion of racist, exclusionist policies.
In states formed by secession, often on grounds of a distinct and predominant nationality and a claim to an ancestral territory, the overt racism of forced expulsions, denial of citizenship, and racial violence have been accompanied or succeeded by administrative measures to implement other often scarcely concealed racist policies. In the successor states of the former Yugoslavia, administrative law and regulations concerning public housing were altered and applied as an instrument of public policy designed to benefit members of particular ethnic groups, largely to the exclusion of other ethnic groups.
Migration and Refugee Flows
A racist dimension of public policy toward both refugee flows and the treatment of migrant labor may be apparent in formal legal constraints on access, applied differentially to would be migrants or refugees of distinct racial or ethnic origins. The development of a common European policy toward refugees, often described as a 'fortress Europe' policy for its emphasis on exclusion and the deflection of refugee flows to host 'holding' countries outside the European Union, has been characterized in this manner.
A disparity founded on race may also be reflected in the definition of national policies to address a particular domestic crisis regarding migrants or refugees, or in the allocation of resources to address international crises and their attending refugee flows. Migrants or refugees may be either privileged or prejudiced in access to state protection depending on their race, ethnicity, or nationality. This may be most apparent in national policies to induce other states to receive refugees at a distance from their own borders, or even in interning refugees away from their own shores, without regard for treaty obligations or the welfare of those refugees intercepted.
The United Nations General Assembly has expressed special concern for the plight of migrants in its recent resolutions concerning racism. Most recently, in December 1999, it expressed deep concern "that racism and racial discrimination against migrant workers continue to increase," and condemning these forms of intolerance as well as "stereotyping of migrant workers and members of their families." All states were called up "to review and, where necessary, revise their immigration policies with a view to eliminating all discriminatory policies and practices against migrants which are inconsistent with relevant international human rights instruments..."
Race and Caste
In Asia, one of the most pernicious forms of racial discrimination is discrimination based on descent, including caste discrimination in South Asia and discrimination against Burakumin in Japan. In much of South Asia, race has become coterminous with caste in the definition and exclusion of distinct population groups distinguished by their descent. Despite formal protections in law, discriminatory treatment remains endemic and discriminatory societal norms continue to be reinforced by government structures ranging from the police and the lower courts to state and municipal authorities.
In India alone, close to 160 million so-called "untouchables" or Dalits (known in legal parlance as scheduled castes) are routinely discriminated against, denied access to land, forced to work in degrading conditions, and routinely abused, even killed, at the hands of the police and of higher-caste groups that enjoy the state's protection. Dalit women are frequent victims of sexual abuse. In what has been called India's "hidden apartheid," entire villages in many Indian states remain completely segregated by caste. Though national legislation and constitutional provisions suggest that the Indian government has successfully tackled caste-related violations, much of the legislation remains unimplemented. For those at the bottom of its hierarchy, caste remains a determinative factor for the attainment of social, political, civil, and economic rights.
Because caste-based abuse is not regularly on the agenda of the Commission on Human Rights, it is important to recognize attempts by some U.N. treaty bodies to bring caste into the purview of their mandates, and equally important to place the issue prominently on the agenda of the race conference. In the concluding observations of its forty-ninth session held in August 1996 (as it reviewed India's tenth to fourteenth periodic reports under the convention), the Committee on the Elimination of Racial Discrimination affirmed that "the situation of Scheduled Castes and Scheduled Tribes falls within the scope of" the International Convention on the Elimination of All Forms of Racial Discrimination, 1965.(1) The Committee has clearly stated that the term "descent" contained in Article 1 of the Convention does not refer solely to race. Similar conclusions were drawn by the U.N. Special Rapporteur on racism, racial discrimination, xenophobia and related intolerance in his January 1999 report. Serious concerns over the treatment of Dalit children and Dalit women in India were also expressed by the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women in their recent reviews of India's periodic reports under the children's rights and women's rights conventions, respectively.
The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance can and should provide an opportunity for redressing the relative lack of attention given to this subject in international human rights discourse to date.
The question of intent
Racist intent remains a real and present factor in the policies and actions of states, even when not immediately apparent in law or at the highest levels of government. A commitment to racial discrimination at any level of government can serve to destroy the rights of distinct populations unless confronted by action at the highest level. At the same time, racist discourse and policy in government and in the private sphere have not notably diminished. Indeed the General Assembly's resolution of December 17, 1999, warned that racist intolerance and acts of violence "persist and even grow in magnitude...including tendencies to establish policies based on racial, religious, ethnic, cultural and national superiority or exclusivity...."(2)
Racist practices and policies may be most clearly present in precisely those areas of government most critical to the regulation of political and civil rights--the police, military, and the administration of justice. They may comprehensively block the enjoyment of social, economic, and cultural rights, through the denial of education, social services, and protection from economic exploitation. The policies, laws, and administrative regulations by which states are governed may have a profoundly racist impact even where this effect is not matched by a racist intent.
State action as well as state inaction may be at fault in providing the victims of racism equal protection under the law and equal opportunity in the exercise of those rights. The inadequacy of state policies and action to confront and eliminate racism may be sufficient to perpetuate institutional racism. Even explicit legislation to confront racism and intolerance may be rendered useless by passivity in its implementation.
Patterns and practices of racism endure even when these are not constructs of openly perverse, explicitly racist laws of the apartheid or other segregationist models. Where racist intent is present, this is often concealed, with no express declaration of racist intent formulated in law or stated policy. Rather, where racist intent is present, policies and practices will be couched in terms that explain their discriminatory effects in the ostensibly neutral terms of economics, of resource constraints, or geographical isolation--or by attributing the negative effects of state acts or inaction upon a particular group to that group's own failings.
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) is a valuable tool in combating racism in part because it stipulates with crystal clarity that a state is still accountable for racism even where there is no proven intent. CERD requires remedial action whenever there is racism in effect: even where there may be no intent whatsoever to discriminate against a certain group. Similarly, CERD requires states to take responsibility and to take action to combat racism by public agencies and in the private sphere.
1. Consideration of Report by India to the Committee on the Elimination of Racial
Discrimination, CERD/C/304/Add.13, September 17, 1996.
2. U.N. General Assembly, A/RES/54/153, Resolution Adopted by the General Assembly
[on the report of the Third Committee (A/54/603)], "Measures to combat contemporary forms of
racism, racial discrimination, xenophobia and related intolerance," 83rd plenary meeting,
December 17, 1999.
2. U.N. General Assembly, A/RES/54/153, Resolution Adopted by the General Assembly [on the report of the Third Committee (A/54/603)], "Measures to combat contemporary forms of racism, racial discrimination, xenophobia and related intolerance," 83rd plenary meeting, December 17, 1999.