Johanna Westeson - The ICHRP

In conclusion, many countries of the European region – primarily those with large
immigrant communities – have taken strong and forceful measures to combat FGM. This is
praiseworthy from a human rights standpoint, considering the harmful and discriminatory
effects of the practice, as shown by strong statements by several UN treaty bodies.
However, while international human rights bodies have not first and foremost
recommended that the practice be combated by criminal law measures, this is the route
most forcefully chosen by Western European governments. Precisely because the targeted
populations in Europe are almost exclusively of immigrant background, the blanket
statements and the strong emphasis on criminal law may have negative side-effects – and
may not be the most effective means by which to combat the practice of FGM.
5D. HATE CRIMES, POLICE BRUTALITY AND FAILURE TO
RESPOND
1. Introduction
Governments have an obligation under domestic law to combat all crime. The concept of
hate crimes – crimes that express or are motivated by biases towards a particular group in
society – is a mere recognition that governments consider crimes more serious when they
are rooted in religious, ethnic, or other hatred that spread harm and fear among whole
communities. Hate crime legislation also serves as a complement to non-discrimination
legislation, as a means to further underline that the state does not tolerate negative
treatment on discriminatory grounds. This chapter will cover violent crimes that target
persons of real or perceived non-conforming sexual behavior and/or sexual identities.
Closely linked to so-called hate crimes is police brutality based on homophobia or
transphobia, as well as action or inaction on behalf of the police in response to such
violence committed by non-state actors.
In the European region, there is a growing recognition that hate crimes occur not only
because of contempt for certain racial, ethnic or religious groups, but also in relation to
individuals who belong to sexual minorities or who are perceived as transgressing sexual
norms. As will be shown, this recognition comes across in recent legislation where sexual
orientation has been added to lists of protected grounds in hate crimes legislation, and in
non-binding condemnation of homophobia and homo- and transphobic crimes on regional
level. Gender identity as an explicit protected ground is still largely absent in the region.
Hate crimes are often addressed in conjunction with hate speech – forms of expression
spreading, inciting, promoting or justifying hatred based on intolerance, which may
effectively lead to the commission of hate crimes. Nevertheless, hate speech falls outside
of the scope of this study; other aspects of legitimate limitations to freedom of expression
for the purpose of sexual health will be addressed in Chapter 7B: Sexual expression.
Issues of police brutality and failure to respond on behalf of the police to violent crimes
linked to hatred for sexual behavior or identity merit separate attention. In these cases, the
state is directly responsible – by action or by direct omission – for the violation. However,
while it is easy to find ‘bad’ practices in this regard, responses to such practices are mainly
covered by hate crimes legislation and implementation, on one hand, and by (nonlegislative)
schemes to monitor police activity and provide models for accountability in the
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