The penumbra of race

05 December 2000

Gioia Maiellano¹

"I am invisible… I am invisible, understand, simply because people refuse to see me. Like the bodiless heads you see sometimes in circus sideshows, it is as though I have been surrounded by mirrors of hard, distorting glass. When they approach me they see only my surroundings, themselves or figments of their imagination - indeed, everything and anything except me."

Ralf Ellison, The Invisible Man

Race is a concept so encumbered with overtones of meaning and implications that it is a daunting task to write an essay with race as the central topic. How does one approach writing on race? What is race? What does it mean? How do a given people come to be regarded as a race? In an environment that is continuously and rapidly changing in the context of increasing social and cultural diversity, how should race be conceptualized? However one may choose to define race, it cannot be denied that it is so complex a topic that, as Marek Kohn writes, "at the same time that we feel compelled to [discuss] it, we are profoundly uncertain about how to think about race."²

Historically, the term "race" was used to refer to biologically distinct groups of people. Anthropologists originally classified all humans into only three races: the Caucasoid, the Negroid and the Mongoloid.³ Webster's dictionary defines race as, "1. One of the major subdivisions of mankind, regarded as having a common origin and exhibiting a relatively constant set of physical traits…; 2. Any group of people or any grouping of peoples having, or assumed to have, common characteristics."⁴

More recently, however, race has come to imply a classification of individuals having similar social and cultural characteristics. With the changing perception of race, ethnicity and identity in contemporary society, the notion of race has significantly evolved over time from one with strictly biological connotations to one viewed primarily as a socially constructed concept. The concept of race today is no longer equated with physical, anthropological connotations, but instead roots its definition in how people are perceived in society. As early as 1955, one sociologist wrote that "the trend in current social science thought is to shift from the biological to a social conception of race. A race has come to mean simply a group of people who are regarded and treated in actual life as a race. The membership of the race simply consists of those individuals who are identified and classified as belonging to it."⁵ Arguably, it appears that notions of race and perceived ethnicity become difficult to distinguish. Therefore, a contemporary definition of race is continuously linked to a social construction of the concept so that in fact, today's ethnic groups are yesterday's races.

As women (and women's rights) have historically been defined by the hegemonic, patriarchal male gaze, so has race (and rights of minorities) been historically reflected through the eyes of the white Northern European. The meaning and societal perception of race has continuously and repeatedly been used and manipulated in order to achieve political gains. It was often based in racist traditions with self-serving incentives. Dictators and authoritarian regimes have persistently targeted different racial groups as scapegoats for various socio-economic problems. Political platforms were constructed on the basis of policies rooted in the belief that some races are "more equal than others." Hitler's Germany murdered Jews and Roma because they were perceived as "inferior races." African Americans were brought to the United States to be used as slaves because the white race was deemed "superior" to the black race. Such categorizing of groups of people on the basis of race served as a means to subjugate, oppress and exert control over the non-dominant and most often, "non-white" populations.

The importance of how race is defined and interpreted in the law and the inherent danger in allowing its meaning to be manipulated has thus been emphatically demonstrated throughout history. The law has not always provided a system of rules which could be invoked to respond to racial injustice. It has at times in fact even served as a tool which enforced discrimination. In the United States, the "Jim Crow laws", a system of laws and customs, imposed racial segregation and discrimination throughout the country from the late nineteenth century to the 1960s. In Germany, the Nuremberg laws made use of the term race to both define the Jewish people and strip German Jews of their civil rights, thus implementing the nazification of Germany. Race and ideology became the basis of laws protecting German "blood and honor." Penal law and criminal ordinances prohibiting all forms of opposition to German rule became the principal tool for the enforcement of Nazi policies. Hence, the acts of persecution within Germany that heralded the Nazi rise to power were promptly reinforced by an imprimatur of legality.

As race is a concept that is socially and historically constructed, its meaning has also thus changed as a consequence of social and political struggle. Accordingly, the law has also served as a means of promoting racial equality. In the United States, racial segregation enforced by racist codes and laws led to the Civil Rights Movement - a century-long history of protest rooted largely in Southern black communities, where the struggle against legally mandated structures of white supremacy was mounted and sustained, and culminated with mass protests in the 1960s. The Civil Rights Movement had its roots in constitutional amendments enacted during the Reconstruction era, the period during and immediately following the civil war. The Thirteenth Amendment (1865) abolished slavery, the Fourteenth Amendment (1866) extended citizenship and the equal protection of the law to all regardless of race, and the Fifteenth Amendment (1870) barred voting restrictions based on race. On May 17, 1954, the U.S. Supreme Court unanimously ruled in Brown v. Board of Education that the doctrine of "separate but equal" as applied to public education was unconstitutional.⁶

In the international arena, international human rights law and jurisprudence has become a key tool in advancing racial equality and combating racism. The international human rights legal regime provides several conventions and documents that expressly proscribe racial discrimination. The United Nations Charter, the Genocide Convention, the Convention on the Elimination of All Forms of Racial Discrimination, and the Covenant on Civil and Political Rights, among others, have all been demonstrative of international attempts to define and protect the rights of minorities and to proscribe racial discrimination. International law has always mandated a broad definition of the term race so as to encompass all discriminatory acts that the documents aim to proscribe. This is demonstrated in various international documents which address the issue of racial discrimination by referring solely to discrimination on account of "race", without mention of "ethnicity".⁷ It cannot be realistically contended that the drafters of such international human rights instruments intended for discrimination based on one's ethnicity to be excluded by the protections afforded by these conventions.

Perhaps the most important document in international law proscribing racial discrimination is the Convention on the Elimination of all Forms of Racial Discrimination, hereinafter, ICERD. The chain of events ultimately leading to its preparation and adoption were precipitated by manifestations of anti-Semitism and other forms of racial and national hatred and racial prejudices of a similar nature.⁸ ICERD has been described as "the international community's only tool for combating racial discrimination which is at one and the same time universal in reach, comprehensive in scope, legally binding in character, and equipped with built-in measures of implementation."⁹ Article 1(1) of ICERD explicitly defines racial discrimination as:

"any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."

In the United Kingdom, the Race Relations Act of 1976 defines a racial group as "a group of persons defined by reference to colour, race, nationality or ethnic or national origins."¹⁰ In Ealing Borough Council v. Race Relations Board¹¹, the House of Lords ruled that there is very little, if any, distinction in biological terms between so-called races, and that it would hence be unwise and most undesirable to make membership of a particular group dependent upon any form of biological proof. Moreover, in defining race as a social concept, Lord Tullybelton in Mandla v. Lee¹², stated that, "For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community."¹³

Despite the clear mandate from international law and jurisprudence that calls for a broad definition of race, various Eastern European courts have chosen to narrowly interpret the meaning of race. They have handed down dangerous legal rulings and decisions which reflect an archaic and outdated notion of the meaning of race in today's society. In the Matter of Ivan Mako,¹⁴ a Slovak Roma was beaten and injured in a racially motivated attack by three skinheads. The attackers were charged under the Slovak penal code with "infliction of bodily harm caused to a person because of his political conviction, national origin, race, religious or other conviction."¹⁵ The lower court, however, ruled that Romani Slovaks and non–Romani Slovaks were in fact the same "race", evidently defined in strictly, or primarily, biological terms. Thus, since the applicable law referred only to "race", the court declined to convict. The victim appealed the decision, and the appellate court reversed and remanded the case to the lower court for reconsideration on the issue of race. The lower court, however, upheld its original decision that Romani Slovaks were of the same race as non-Romani Slovaks and that therefore, the charge of racial hatred was inapplicable.¹⁶ A second appellate court quashed this decision of the lower court and again remanded the case to the first instance court for reconsideration on the issue of race. This time, the District Court finally ruled that the law did in fact apply to violent acts committed against Roma by non-Romani Slovaks.¹⁷

Czech courts have similarlytaken a cramped and antiquated view of the meaning of race in anti-discrimination law. In the Matter of Lukas Ardelan and Pavel Brachacz¹⁸, defendants Ardelan and Brachacz threatened to beat up and throw four Romani passengers from a train in Hradec Kralove, Czech Republic. As one of the Roma stepped off the train, he was kicked by defendant Brachacz. the defendants were charged with violation of Article 196(1) of the Czech Penal Code which maked it a crime to "threaten a group of inhabitants with death, injury to health or infliction of damage of great extent," and of Article 196(2) which makes it a crime to "use violence against a group of inhabitants or against an individual, or to threaten them with death, injury to health or infliction of damage of great extent for their political convictions, nationality, race, creed, or because they have no creed..."¹⁹ The District Court in Hradec Kralove found the defendants guilty under Article 196(1), but acquitted them of the charge under Article 196(2) ruling that the Romani victims "belonged to the same race" as the defendants.²⁰ The Court further stated that the law did not apply to ctimes committed because of skin colour or ethnic origin og the victims since Article 196(2) of the Czech Criminal Code made no mention of such terms, notwithstanding the fact that such factors are prohibited under Article 1 of ICERD. Similarly, in a May 1995 case involving skinhead violence against a Romani male in Žd'ar nad Sazavou where four Czech skinheads beat Mr Tibor Berki to death with a baseball bat, the District Court decided the murder was not racially motivated.²¹

The original decisions in the Mako and Ardelan and Brachacz rulings are in outright conflict with today's meaning of race. The Slovak and Czech courts appear determined to keep "ethnicity" and "race" divided, while the rest of the world no longer regards them as distinct. According to the leading human rights document on racial discrimination, any discrimination on the basis of ethnicity would qualify as racial discrimination and therefore, the holdings in both the Mako and Ardelan and Brachacz cases are inconsistent with the meaning international jurisprudence assigns to "race". Indeed, ICERD's design reflects the reality that, "racial, religious and ethnic intolerance and prejudices are in many ways inseparable, and frequently it is impossible â€? and also irrelevant - to establish which element defining the nature of the group is the one that engenders the act that should be prohibited."²² Therefore, when legislation is enacted to protect certain groups against such racially motivated crimes, the term "race" must be broadly construed. When neo-Nazi sympathizer groups attack Roma or any other ethnic or minority groups, they do so because of reactions to the group's perceived ethnicity. Furthermore, in denying the existence of any racial differences, such judicial holdings manifest an underlying belief in racial nihilism. That is, they reject racial diversity and reduce all diversity to uniformity. The inherent danger in such thinking is that it entirely disregards the importance of addressing the issue of race in achieving social and legal justice. In the context of anti-discrimination law, the importance of how race is interpreted is of paramount importance as such laws are intended to provide a remedy for combating racism.

Pursuant to international human rights jurisprudence, it is thus crucial that race be defined at the national level according to a contemporary interpretation which reflects an inherent relationship between the concepts of race and perceived ethnicity. This new vision of race is, however, constantly under threat as demonstrated by decisions such as Mako and Ardelan. Yet it is of critical importance that anti-discrimination legislation designed to protect particular minority groups be construed broadly in order to achieve the goals established. Such legislation is not simply enacted to protect victims of racially motivated violence, but is representative of a collective international movement to combat racism. Indeed, anti-racism law must be viewed in light of the cultural, social and economic factors that contribute to and explain the virulence of modern racism. An otherwise outdated construction of "race" would fail to "capture the element of heterophobia, or fear of the different, that is the unifying element in……racism."²³ It is critical that national courts recognise that any interpretation that suggests a purely biological notion of the term "race" would be contrary to international jurisprudence and customary international law. As the political discourse of race has again become central in the European agenda, it is crucial that the meaning of race in anti-discrimination law should reflect a contemporary notion of the term, one that has developed together with the evolution of international human rights law.

Endnotes:

1. Gioia Maiellano is a Staff Attorney at the European Roma Rights Center.
2. Kohn, Marek, The Race Gallery, Vintage, London, 1996; p.1.
3. Blumer, Herbert, Race Relations in World Perspective, Papers read at the Conference on Race Relations in World Perspective, Hawaii, 1954; Univ. of Hawaii Press, Honolulu, Hawaii, 1955.
4. The New International Webster’s Comprehensive Dictionary of the English Language, Trident Press Int’l, 1998 Edition.
5. Blumer, Op. cit. at 2.
6. The doctrine of “separate but equal” saw the segregation of children according to skin colour as permissible, as long as the education received was of an equal standard. See Cashman, Sean-Dennis, African-Americans and the Quest for Civil Rights. New York: New York University Press, 1991.
7. See, e.g., The United Nations Charter, 26 June, 1945 (“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; and “); See also, Art. 2 of the United Nations Universal Declaration of Human Rights, 1948 (“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. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”)  See also, the International Covenant on Civil and Political Rights, (ICCPR), Article 2(1) states that, “Each party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, 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.”
8. Schwelb, The International Convention on the Elimination of All Forms of Racial Discrimination, 15 Int’l & Comp. L.Q. 996, 996 (1966) at pp.1014-15; See also, Lerner, N., The UN Convention of the Elimination of All Forms of Racial Discrimination (1980) at 2, pp.68-73.
9. Schwelb, Op. cit., 996, 997.
10. Race Relations Act of 1976, S.3(1).
11. 1972 Law Reports, Appeal Cases 342.
12. 1983 Law Reports, 2 Appeal Cases 548.
13. Ibid.
14. See, unpublished report of the Mako case from Slovak Attorney, Jan Hrubala, April 2000.
15. Ibid.
16. Ibid.
17. Ibid.
18. Written Comments submitted by the ERRC, October 7, 1997 to the Supreme Court of the Czech Republic.
19. Ibid.
20. Verdict in the Name of the Republic 3T 196/96 47, District Court, Hradec Kralove, 20 November 1996.
21. ‘Roma in the Czech Republic. Foreigners in Their Own Land’, Human Rights Watch/ Helsinki Report, June 1996, Vol. 8, No. 11 (D).
22. Lerner, N., Op. cit., at 11, 28.
23. Gearty, Conor, Racism, Intolerance, Xenophobia: the EU and Human Rights, Oxford: Oxford University Press, 1999, p.15.