Oldal 108 [108]
OCR
HANS-JÖRG ALBRECHT racial or religious hatred that constitutes incitement to discrimination, hostility or violence by law (though not necessarily by criminal law ®). Ihe view that criminal law is a significant source of human rights violations is gradually replaced by the view that criminal punishment is an essential instrument in controlling global bads and protecting effectively victims of human rights violations and ultimately victims of serious crime. In turn, the fragmentary character of criminal law and the last resort principle sometimes tend to be seen as obstacles on the way of closing loopholes and avoiding gaps in criminal liability. Not least the 2011 Istanbul Convention on preventing and combating violence against women and domestic violence’ and a growing willingness to combat ethnic, religious and racial hatred (and hate motivated acts) by means of criminal law (backed up by CEDAW and ICCPR), stand for an approach interested in creating a dense web of criminal offence statutes geared towards closing gaps in criminal liability. However, a policy as adopted in the Istanbul Convention and apparent ina growing interest in penalization of hatred is navigating dangerous waters. It is not only the ambitious goal of “aspiring to create a Europe free from violence against women and domestic violence”, as voiced in the preamble of the Convention which carries a significant potential of escalation and evokes memories of wars against drugs and terror. The penalization program unfolding in the Istanbul Convention and criminal law invoked in responses to hatred demonstrate an enormous potential of conflicts which evidently may amount to another adverse fallout of the paradox of protecting human rights through criminal law and punishment. PROTECTING HUMAN RIGHTS AND PROTECTING CULTURAL DIVERSITY The Istanbul Convention condemns all forms of “negative social control” and targets under this umbrella in particular honor killings, forced marriages and genital mutilation (Art. 37, 38, 42, in addition to ruling out so-called cultural defenses) and calls for penalization of all forms of gender-based violence against women and children (Art. 33, 35, 36). Although the aim of protecting particularly vulnerable groups is certainly legitimate, critics of penalization point to the problem of stigmatizing immigrant and minority groups as well as the mere symbolic nature of criminal law that targets “harmful cultural practices”’°. However, as Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, United Nations General Assembly A/74/486, 9 October 2019, 6. ° Council of Europe Convention on preventing and combating violence against women and domestic violence, Istanbul, 11. 5. 2011. Renée Kool, Step Forward, or Forever Hold Your Peace: Penalizing Forced Marriages in The Netherlands, Netherlands Quarterly of Human Rights 30 (2012), 446-471, 447. + 106 +
