Page 108 [108]
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 +