Literature Review on the Legal and Human Rights Definitions of Refugees, ‘Hate Speech’, Rights of Refugees and Its Impacts on Vulnerable Groups

 

 

 

This review was produced by İGAM within the Media and Civil Society Cooperation for the Rights of Refugees project funded by the Delegation of the European Union to Turkey.

 

Deniz ÖZONUK

27.07.2017 

According to the Committee of Ministers, hate speech covers all forms of expressions that spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance. Hate speech has no particular definition in international human rights; it is a term used to describe a broad discourse that is extremely negative and constitutes a threat to social peace. In the same way, there is no consensus among social scientists or lawmakers on definitional elements that would constitute a global description of hate crime (Hamm, 1998). Part of the reason for this lies in the fact that cultural differences, social norms, and political interests play a large role in defining crime in general and hate crime in particular (F. M. Lawrence, 1999; Petrosino, 1999).

 

Most of the articles examining hate speech refer to C. R. Lawrence, Matsuda, Delgado, and Crenshaw (1993), which defines hate speech as speech that (1) has a message of racial inferiority, (2) is directed against a member of a historically oppressed group, and (3) is persecutory, hateful, and degrading. This definition of hate speech includes parameters much like those of hate crime. Whatever the legal status of hate speech, it is often used as a) critical feature of offensive behavior that distinguishes a normal crime from hate crime (Gerstenfeld, 1992). To illustrate, according to analysis of The Amadeu Antonio Foundation most frequent forms of hate speech against refugees are: contrasting “us” from “them” , generalizations (“all refugees …”), blanket attributions, normalization of discriminatory attitudes, projecting into “refugees” problems involving all of society like sexism, criminality or housing shortage, pejorative designations, dehumanization: equating refugees with insects, parasites, animals, etc, lies about refugees and alleged criminality, violence, rapes, forged official papers – is often disguised as an alleged personal experience, cultural racism (“They simply don’t fit in here”) , soon we’ll feel like strangers in our own country. All of these common practices reproduce hate speech repeatedly.

 

Difference between hate speech and hate crime is a complex topic; Initially, every hate speech may not constitute a hate crime. It may be an insult but there must be a criminal act for punishment of hate crimes. However, hate speech creates ground for hate crimes. It creates the environment because they stand against these identity groups and not the persons.  Acts of violence are legitimized against different groups of identities and they are reproducing repeatedly. That is why there is a vast need for hate crime laws to protect certain identity groups from being objects of hate crimes.

 

The term hate crimes has been employed since the mid-1980s to identify criminal acts motivated either entirely or in part by the fact or perception that a victim is different from the perpetrator. The term first appeared in newspaper accounts of a 1986 racial incident in the Howard Beach section of New York City, in which a black man was murdered while attempting to flee a violent mob of white teenagers, shouting racial slurs. By the early 1990s, the hate crime designation was being applied not only to attacks based on race and religion, but also on sexual orientation, national origin, disability status, and gender. In legal terms, the groups protected by hate crime laws differ from state to state. By 2003, 45 states had some form of hate crime statute that covered individuals targeted because of race, religion, or ethnicity; 30 also included disability status or sexual orientation; only 27 protected gender (Levin, 2003). Similarly, in the UK, we see that since 1998, hate crime  has been covered by a laws as a crime. Although we do not want a ranking between groups, there is also a hierarchy. It is undeniable fact that in different countries different hate crime cases are experienced according to cultural backgrounds; mostly religions and race related crimes are defined and punished first. Disability, age, sexual orientation and gender identity factors are added later. There is such a move because of the visibility of their specific cases. This is why it is important to make these prejudices and hate crimes more visible. Having statistics to create a hate crime map should not be disregarded. In fact, if the Ministry of Justice raises a hate crime statistic as it has been in America since 1990, it would be more easier to find out what is the target of this business more specifically and which groups are targeted. Hate Crimes are criminal offenses motivated either entirely or in part by the fact or perception that a victim is different from the perpetrator. This definition of Levin has three important elements that have been widely : first, it involves actions that have already been defined as illegal in state. Thus, the vast majority of hate crime laws do not criminalize any new behavior; instead, they increase the penalty for behaviors that are already against the law. Second, the definition specifies the motivation for committing the offense; it requires that a racial, religious, ethnic, or some other identified difference between victim and offender play at least some role in motivating the criminal act. Third, the definition of hate crimes provided here does not identify a particular set of protected groups to which the hate crime designation can be exclusively applied. (Levin&Mcdevitt,1993). Hate crimes are committed with prejudice motive. In other words, the act can be seen as hate crime when it is already defined as a crime. For example, damaging a property, hurting a person, attacking that person or murder attempts, are criminal offenses defined by the law, and if these are committed through prejudice, they are hate crimes. The fact that the term “hate crimes” has started being used recently, does not mean that crimes have not been committed in the past. Hate crimes are one of the widespread crimes of 20th century. What is new is the new social movements that are emerging against racism, antisemitism, sexism and the struggle that reaction to these crimes. In this context, especially during 1960s the civil rights that started in the United States and movements of solidarity with the victims, women, homosexuals and lesbians reshaped the struggle in the political arena. The political ground and understanding of struggle which was born with these movements was the source of inspiration for the modern social movements.

 

UNITED  is the European network against nationalism, racism, fascism and in support of migrants and refugees.  It is important to refer their thematic leaflet in order to frame international legal documents against hate speech. Firstly, International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which is declared by United Nations highlighting in its 4th article that States undertake inter alia to declare an offense punishable by law “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination acts of violence or incitement to such acts against any race or group of persons of another color or ethnic origin”, and to declare it illegal and prohibit organizations which promote and incite racial discrimination. The implementation of the Convention is carried out by the Committee on the Elimination of Racial Discrimination (UNCERD). The Council of Europe took a similar resembling. The First Additional Protocol to the Convention on Cybercrime of 2003 concerning the criminalization of acts of a racist or xenophobic nature committed through computer systems, provides that State Parties shall adopt such legislative and other measures as necessary to establish criminal offenses under domestic law, intentional conduct including distributing, or otherwise making available, racist and xenophobic material to the public through a computer system. The council framework decision on combating racism and xenophobia of European Union provides for the approximation of the laws and regulations of the Member States regarding offences involving racism and xenophobia. Racist and xenophobic behavior must constitute an offence in all EU Member States and be punishable by effective, proportionate and dissuasive penalties. This framework decision applies to all offences committed that within the territory of the European Union, by any national of a Member State or for the benefit of a legal person established in a Member State. To that end, the framework decision proposes criteria on how to determine the liability of a legal person.

Racism and xenophobia means belief in race, color, descent, religion or belief, national or ethnic origin as a factor determining aversion to individuals. Certain forms of conduct outlined below committed for a racist or xenophobic purpose will be punishable as criminal offences:

Member States must ensure that they are punishable by:

  • effective, proportionate and dissuasive penalties;
  • terms of deprivation of liberty with a maximum penalty that is not less than two years for public incitement to violence or racist hatred or the directing of a racist or xenophobic
  • group; in the other cases, by custodial sentences which can give rise to extradition;

 

  • alternative sanctions such as community service or participation in training courses;
  • fines;
  • seizure of any material used as an instrument to commit the crime;
  • penalties for legal persons (temporary or permanent disqualification from the practice of commercial activities, a judicial winding-up order, exclusion from entitlement to public aid).

In all cases, racist or xenophobic motivation will be considered as an aggravating circumstance in determining the penalty to be applied to the offence.

 

The purpose of the hate crime law is to make this common prejudices and hate more visible in the eyes of society. This prejudice that is created should be described, these motives should be understood and recognized. In this way this acts are seen as crime and penalties are becoming heavier. For example a very simple man-wounding act if done with prejudice, the penalty for that crime is increased in a certain way. According to the different criminal law systems of the countries, the way the legislation implemented varies. Common prejudices are the ones for ethnic or national origin, religion, sexual orientation, disability. However, there are also prejudices against for the rich,  the poor,  the young with long hair and the earring, the drinkers, those who are HIV positive, rock crawler, and so on. Hate crimes have gained importance, and not only for the direct prejudices against the target of the attacker, but the effect of the crime in society also increases. The assailant has the target because of the group which he or she is in. So the main focus here is not only the person targeted but also the group which certain common characteristics are shared. Therefore, from the attacker’s point of view, anyone else could have been selected for the same reason. To make a hate crime law or trying to create an environment to discuss hate crime law in that specific country should also be one of the important objectives of civil society organizations and this was taken into consideration in Turkey as well, and the hate crime campaign has begun.

 

Article 122 of the TCK, which was drafted in the framework of harmonization norms to the EU and presented in the end of 2014, was presented with news that “hatred and crime will be punished” after the addition to the blood, but two years afterwards it stated that the article almost defined an “irreparable crime” is never given. Before looking at the problems of implementation of the Article 122, it is useful to look briefly at its definition and past.

Article 122- (Amended: 2/3 / 2014-6529 / Article 15)

(1) Due to hate resulting from language, race, nationality, color, sex, disability, political thought, philosophical belief, religion or sectarian distinction;

 

  1. A) the sale, transfer or lease of a movable or immovable property which has been furnished to a public person,

 

  1. B) that a person is to benefit from a certain service offered to the public,

 

  1. C) the recruitment of a person,

 

  1. D) that a person has ordinary economic activity,

 

the one who obstruct each will be punished by imprisonment of up to three years from one year.

 

* While title of article is “Discrimination”, Article 15 of Law No. 6529 dated 2/3/2014 added “hate” to the title.

There was also the words ‘sexual orientation’, ‘union’, ‘an ethnic group’, ‘customs and customs’ and ‘origin’ in the draft text of Article 122 of the TCK, which was inspired by TCK article 183 of 2003; But these statements were removed from the article by the Subcommittee. Subsequently, the concept of ‘disability’ was added to the article in 2004; by 2014, the regulation was made under the scope of the ‘democratization package’ adopted in the Assembly, and the substance was altered almost completely and has become its present state. In this amendment, the criminal penalty was abolished and the crime punishment was increased, and the title of the matter was changed into ‘hatred and discrimination’. Thus, in order to be able to apply the material, it was necessary to introduce hate discrimination. According to experts, the law defines an irreparable crime, the prosecutors do not take criminal prosecutions, and courts are acquitted if the case is filed in Turkey. According to the first paragraph of Article 10 of the Constitution, “Everyone is equal before the law regardless of language, race, color, sex, political thought, philosophical belief, religion, denomination and so on.” In the text of the Constitutional Court, the scope of the expression of ”so on” has not been interpreted thus far. The Court did not examine whether the claim was within the scope of “so on” and concluded that it violated the principle of equality before the law, which was subjected to direct and only constitutional test or to decisions of law. (Gül & Karan,2011)

 

In response to the question of discrimination and hatred rhetoric, Bilgi University Faculty of Law Assist. Assoc. Dr. Ulaş Karan says: ‘The arrangement in 2014 made an existing crime, the discrimination crime, a hate crime. From the moment when it becomes a crime of hate, it must be proved that it is treated with hate motive. It is a crime of hatred if you are concerned about the identity of the person who is harming someone. So there is a crime, whether you hate it or not. But when it was defined as ‘hatred’ in Article 122, it turned out to be a hate crime. It was a crime that could be committed with hatred. Definition shrank. In this case, it was an ‘irreparable crime.’ “So if there is no hate regarding this matter, then there is no discrimination. Turkish Journalist Armutçu also investigated the subject in detail and reached that to be defined some act as hate crime in Turkish law, the perpetrator must act with prejudice, and the crime committed in the criminal law must be committed because of their belonging to the person or group. In order to be able to speak of hate crime, firstly the act committed must be regulated as an independent crime in the criminal law. According to article 122 of the Turkish Criminal Code, “crime based on discrimination based on race, state, nationality, color, sex, disability, political thought, philosophical belief, religion or denomination difference” was criminalized in the Turkish Penal Code. The legislator has clearly identified ten conservation groups here, and the elective and affiliated movements for these ten conservation groups are criminalized. In the case of discrimination, by means of a group hatred outside the ten protection groups for criminal and criminal justice marriage, or discrimination by an action other than the four different modes of action stated against the ten protection groups, no discrimination offense will occur.

In order to analyze case of hate speech in Turkey, it would be important to look at the opinions of NGOs representatives and academics and their leading effort for this case. As an example, Hrant Dink Foundation has been carrying out a project of monitoring hate speech in the media since 2009. It is one of the initial projects that the foundation has established since it was founded. Since its foundation, the objectives of the project are; to contribute to the struggle against racism, discrimination and intolerance and to further report, reveal and increase the visibility of hate speech made specifically for ethnic and religious identities in the written press. At the same time, later on in the project, sexist and homophobic discourses were also added to this area which is further expanding. And this project has been going on for 5 years in order to contribute to the visualization of such content. At the same time, it was one of the goals of the project to create ground for discussing the ways of struggle in the civil society and the academy.

Arnold Barnes and Paul H. Ephross made a research to see the effects of hate violence on minority group members. According to the results the majority of the victims (76 percent) did not receive physical injuries as a result of the most recent attack. Minor injuries were sustained by 10 percent, and 9 percent received medical treatment for injuries inflicted in the attack. The severe injuries inflicted on 5 percent of the victims required hospitalization. In 41 percent of the most recent attacks, victims incurred property damage. Participants identified several emotional reactions to the most recent attack on them.  The most prevalent emotion was anger towards the perpetrator, which nearly 68 percent of the participants reported. Fear of injury was the next most frequently cited emotion, with nearly 51 percent of the participants indicating fear that they or their families would be physically injured. A number of victims (approximately 36 percent) were saddened by the incident. About one-third of the participants (33.9 percent) reported behavioral changes as both coping responses to the most recent attack and as attempts to avoid potential future victimization.

Interviews with victims of hate violence indicate that the aftermath of the victimization is characterized by a pervasive feeling of fear. As indicated earlier, the victims of these incidents generally did nothing to bring this violence upon them and thus do not know what to do to reduce their chance of future victimization. Their fear may be based on threats by the offender or friends of the offender but often it is simply based on the random nature of the crime (McDevitt,et al 2001).

 

In the case of Turkey, hate speech and hate crimes are mostly directed towards the Syrian refugees whose count has reached more than 2 million. This is firstly linked to the economic burden and security problem that asylum seekers bring to the news and writings framing the presence of Syrian refugees as a “threat”. Secondly, the Syrians’ presence in Turkey is “objectified” with the emphasis on the amount of money spent, the amount of aid made and the number of refugees, regardless of the violation of human rights and / or the human dimension of concern. Thirdly, in some cases where social media can easily be circulated and the local press is also able to locate areas in the mainstream, asylum seekers can be classified as “war escape”, “terrorist”, “cowardly”, “dirty”, “traitor”. We can determine that the “racist” discourse, which targets negative labels such as “free-hand” and “ignorant”, is reproduced. (Doğanay&Çoban, 2016). It is also very problematic that Syrian refugees are always defined as having temporary status in Turkey by policy makers. According to Biner from Association for Solidarity with Refugees in Turkey, there is a very violent and very severe aspect of imposing what is legally “temporary” to an individual. How are people coping with this situation when the temporary and unwanted subject addressed as a ”temporary guest” and stigmatized, should be questioned.

 

Finally, as its underlined in ”Combating Violent Hate Crime” report of Humans Right First, there are numerous aspects to a comprehensive government response to hate crime, one particular challenge is the problem of underreporting. In order to respond to individual incidents, understand the nature and frequency of hate crime and develop sound public policy, governments must be fully aware of their occurrence. Underreporting of crimes is a particular difficulty which remains one of the principal problems, especially among refugees, asylum-seekers, and migrants. There are numerous reasons for this. Among them are fear of retaliation by the perpetrators of violent acts; fear of victimization by law enforcement officers, some of whom may be corrupt or may even share the same biases as the perpetrators; fear of deportation; and uncertainty regarding how reporting the incident would help them throughout their lives. As a result, governments must make particular efforts to ensure that hate crimes are reported to the appropriate authorities so that action can be taken to hold the perpetrators responsible in individual incidents, and to better measure the response of governments over time. Governments must also makes efforts in  increasing the confidence in their responses to hate crime by publicly speaking out against incidents, responding to instances of abuse by law enforcement officials against victims of hate crimes.

 

 

 

 REFERENCES

Armutçu O. (2016, November 02). İlk kez nefret suçları tanımlandı. Retrieved July 17, 2017, from http://www.hurriyet.com.tr/ilk-kez-nefret-suclari-tanimlandi-40265961

 

Arslan, Z. (2014, June 14). NEFRET SÖYLEMİ VE NEFRET SUÇU. Speech, İZMİR.

 

Barnes, A & Ephross, P. H. (1994). The Impact of Hate Violence on Victims: Emotional and Behavioral Responses to Attacks. Social Work

 

Biner , Ö. (2014, June 14). NEFRET SÖYLEMİ VE NEFRET SUÇU. Speech, İZMİR.

 

Boeckmann, Robert J., and Carolyn Turpin-Petrosino. “Understanding the Harm of Hate Crime.” Journal of Social Issues 58.2 (2002)

 

Combating Violent Hate Crime Against Refugees, Asylum-Seekers, and Migrants: Recommendations for States … (n.d.). Retrieved July 16, 2017, from www.humanrightsfirst.org/

 

Dinar, C. & Mair,T. &  Rafael,S. & Rathje,J. & Schramm,J. (2016). HATE SPEECH AGAINST REFUGEES(Publication). Berlin: Amadeu Antonio Foundation.

 

Doğanay, Ü., & Çoban Keneş, H. (2016). Yazılı Basında Suriyeli ‘Mülteciler’: Ayrımcı Söylemlerin Rasyonel ve Duygusal Gerekçelerinin İnşası. Mülkiye dergisi, 40(1), 143-184.ISO 690

 

 

 

Freedom of Expression. (n.d.). Retrieved July 17, 2017, from http://www.coe.int/en/web/freedom-expression/hate-speech

 

Gerstenfeld, P. B. (1992). Smile when you call me that! The problems with punishing hate motivated behavior. Behavioral Sciences and the Law, 10, 259–285.

 

Gül, İ. I., Karan, U., Yeşiladalı, B., & Ayata, G. (2011). Ayrımcılık yasağı: kavram, hukuk, izleme ve belgeleme. İstanbul Bilgi Üniversitesi yayınları.

 

Hamm, M. S. (1998). Terrorism, hate crime, and antigovernment violence: A review of the research. In H. W. Kushner (Ed.), The future of terrorism: Violence in the new millennium (pp. 59–96). Thousand Oaks, CA: Sage Publications.

 

Kazaz, G. (2016, December 15). TCK 122 hayal kırıklığı: Nefret suçu kağıt üstünde kaldı. Retrieved July 17, 2017, from

 

Levin, J., & Mcdevitt, J. (1993). Hate Crimes. Retrieved from http://jacklevinonviolence.com

 

Ritzer, G. (2009). Hate speech. In The Blackwell encyclopedia of sociology (pp. 2048 -2049). Malden, Mass.: Blackwell.

 

 

 

 

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