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Jan Fermon- Progress Lawyers Network Belgium
1. International law developed significantly after WW 2. The people worldwide had been confronted with wars of aggression, genocide, massive war crimes, crimes against humanity and terrorist dictatorships. The fascist powers were defeated not only by the classic warfare waged by the allied countries but also and to a large extend by the struggle of the resistance movements that stood up in all parts of the world against tyranny. The post WW 2 framework of international law reflects in many ways the rejection of fascist terrorist policies and the role people’s resistance had played in the effort to defeat fascism. I will only discuss this from one angle: the radical opposition of international law to policies based on discrimination and sectarianism.
2. The fascist powers had all build their policies on instigation and incitement of hatred and violence against minorities. Nazi Germany instituted a policy of structural discrimination against its citizens of Jewish descent from September 1935 on when the so-called Nurnberg laws were adopted. Prior to that the Nazi party had conducted a campaign of incitement to hatred against the Jews and subsequently, as we all know, implemented a genocidal plan to exterminate all Jews in Europe. But the Nazis also incited to hatred against the Slav peoples in order to justify the war of aggression against the Soviet Union. Fascist Italy spread racist and discriminatory ideas to justify its genocidal war against the people of Abyssinia and the Japanese rulers did the same regarding the Chinese people.
3. In 1945 and 1946, when the UN charter and the Universal declaration of Human Rights, both cornerstones of the new framework of international law, were adopted, the memory of the horrific disasters that discrimination and sectarian policies had brought about was still very fresh in everybody’s mind.
The UN Charter sets in article 1.3 as a purpose for the United Nations: “To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;”
The Universal Declaration of Human Rights further elaborates on the idea that equality and non-discrimination is a cornerstone on international law. The very first sentence of the preamble reads:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”
Art. 1 of the Universal Declaration further sets the opposition to discrimination and sectarianism as the overall standard: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Art. 2 further elaborates on this: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Art. 7 bans discrimination explicitly: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”
Based on the experience of fascism and WW 2 the UN-Charter, the Universal Declaration and subsequently the International Covenants on Social and Economic Rights on one hand and on Political and Civil rights on the other hand simply outlawed discrimination, sectarianism. Non-discrimination has been since a cornerstone of the further development of international law. It is prominently present in numerous instruments of international law related to various matters and too numerous to list here.
The fundamental reason for such an important position for non-discrimination was that the experience of WW 2 and fascism had shown that discriminatory and sectarian policies were inseparable from incitement to hate. Institutional discrimination is the materialisation in politics and above all in law of hate speech and sectarianism. And the combination of both hate speech and institutionalised discrimination is the breeding ground and the pretext that can potentially lead to crimes against peace, war crimes and crimes against humanity and finally to genocide.
4. Hate speech on which institutional discrimination is inevitably build is to some extend irrational because it ties practical consequences to imaginary distinctions between different groups in the population or it draws unfounded consequences from such differences.
However, hate speech and discrimination are not used in an irrational way by those who use them as a political tool. The Nazis developed totally irrational theories on the superiority of the “Aryan race” to which the German people belonged and the inferiority of Jews, Slavs etc. From a scientific point of view these theories were pure nonsense. However, these ideas paved the road to reduce the Jewish people to slavery, to plunder all their belongings, to wage wars of aggression against other European countries and especially against the Soviet Union in an attempt to seize the natural resources and the land of these countries and to reduce its population to slavery. All of this to the benefit of the German industry and economy. The actions taken by the Nazi regime and legitimized by irrational sectarianism and incitement to hate were in fact criminal but highly rational.
Sectarian policies today in the Middle East and especially incitement to hatred against – and discrimination of religious minorities is not more rational in essence but serves very clear and rational goals. The US invaded Iraq using the crimes of Saddam Hussein as a pretext. The fact that previously the US had supported Saddam Hussein in every criminal action his regime had undertaken was deliberately hidden. The reality is that the US did not attack Iraq because of those crimes or any real or imaginary threat to the world peace. The US never in history removed a regime merely because it committed heinous crimes, as long as the regime served the US interests. Iraq was attacked because it had strong state institutions, a strong army and had therefore the necessary strength and potential to oppose the plans for a so-called “New Middle East”. These plans were unveiled in the New York Times of September 28 2013 under the title “How 5 countries could become 14”