When Important Judges Say Stupid Things About Roma
06 June 2017
I have met a few – but only a few – Roma who are optimistic about going to court. That’s not a surprise. The courts have done little to change the lives of Roma. And some judges are rabidly racist.
But this is not a post about the rabidly racist judges. I’m writing about a different kind of judge: otherwise progressive judges who say stupid things about Roma, and do as much harm, if not more, to the image of the courts as an institution to which Roma can turn.
I have two examples. Two judges who should know better, and who have important voices, yet have said stupid things about Roma and brought shame upon the justice system they serve.
Baroness Hale of Richmond (Supreme Court of the United Kingdom)
Lady Hale is the only female justice (judge) of the Supreme Court of the United Kingdom, and the only woman ever to serve on the UK’s highest court (which used to be known as the Judicial Committee of the House of Lords). Lady Hale’s thoughtful understanding and expertise on anti-discrimination law, family law, and human rights make her an inspiration to lawyers in her country who want to achieve social justice. Last year, Lady Hale wrote the lead opinion in a case (In the Matter of N (Children)) about children who had been taken away from their parents and into state care. The children and their parents were from Hungary and were living in England. The question before the Supreme Court was whether, under EU law, the case should be transferred to the courts of Hungary or should stay in the English courts. It was a procedural question with serious real-world consequences: English courts allow kids in care to be put up for adoption much faster and more frequently than most other courts in Europe.
Lady Hale began her opinion with the following words: “The parents are in their 20s. The father is of Hungarian Roma descent, the mother of mixed Hungarian and Roma descent”.
Her summary of the facts goes on to describe a dysfunctional family. It sounds like the children were rightly taken away for their own wellbeing.
There is a vicious racist stereotype (not, of course, referred to in the judgment) that Roma mistreat their children. This stereotype feeds into the discriminatory practice of Romani children being excessively taken into state care, especially in Central and Eastern Europe. The family’s ethnicity played no role in the ruling, which concluded that the matter should stay with the courts in England. So what was the point of mentioning that the children were Romani and perpetuating that stereotype?
The very distinction between “Hungarian Roma” and “Hungarian and Roma descent” in Baroness Hale’s words captures a racist elision that many Roma in Hungary feel too keenly: it is one thing to be a Hungarian citizen (which all “Hungarian Roma” are) but another thing to be ethnically Hungarian, which only someone who is of “Hungarian descent” (as Baroness Hale puts it) can claim. Try substituting the name of any other racial or ethnic group instead of “Roma” in Baroness Hale’s sentence and see if it would be acceptable, or even understandable. It is not so much that Lady Hale does not know what she is talking about; race and ethnicity are not real things, so anyone talking about them is always making it up or copying someone else who has. The problem is that Baroness Hale picked up key words from an irrelevant but vicious racist vocabulary (language that presumably came from somewhere in the case1) and made it her opening gambit.
Judge Serghides (European Court of Human Rights)
Judge Serghides is one of the European Court’s 47 judges, and was one of the 17 judges on the Grand Chamber panel in a case called Khlafia and others v Italy, decided last December. Judge Serghides wrote his own opinion in the case which was very progressive, but he said something stupid about Roma in it.
The judgment condemned Italy for unlawfully detaining people who came by boat from North Africa to Lampedusa (an Italian island very close to Africa). Judge Serghides thinks his colleagues did not go far enough: they should also have condemned Italy for committing an act “collective expulsion”. Basically, Judge Serghides thinks that Italy sent these people back to the country they came from (Tunisia) without individually examining their situations.
I agree with Judge Serghides’s legal reasoning, and it is a shame he did not convince a majority of his fellow judges. It is also a shame that he had to say something so idiotic in his separate opinion, which was annexed to the majority judgment. When describing the European Convention’s prohibition on collective expulsions, he wrote that it “applies mainly to the case of expulsion of persons who are not lawfully resident in the territory of a State, for example, groups of would-be or failed asylum seekers, of Roma or gypsies seeking a camp, of migrant workers seeking employment, of economic migrants, etc.”.
To avoid ranting, I’m trying bullet points. Maybe you want to add more in the comments section below.
- The term “gypsies” is violently offensive to most (but not all) Roma I know, and judges should not put offensive words in judicial writing unless there is some good reason (e.g. quoting a police officer in a hate crimes case who used a racial slur). Some people identify themselves as “Gypsies” (with a capital “G”). But that does not give Judge Serghides an excuse. The European Court is part of the Council of Europe, which officially uses the term “Roma and Travellers”. That is the term the Court itself now uses.
- Roma do not, as a defining characteristic, “seek camps”. There are people who identify as Travellers and who proudly live a travelling life and have a right to do so. There is also a deeply rooted, vicious racist stereotype about Roma being wanderers with no roots, loyalties, etc. Indeed, for this reason Roma and Travellers are both victims of antigypsyism. Judge Serghides’s fanciful image of “Roma and gypsies” rocking up at the border of some European country “looking for a camp” comes right out of the antigypsyism playbook (notably in France).
- In 2016, after several years in which we have seen desperate people arriving in Europe by boat from North Africa and Turkey or by land, often through the Balkans, it is bizarre that the first image of “persons who are not lawfully resident in the territory of a state” that comes to mind for Judge Serghides is “Roma or gypsies seeking a camp”. I’m not suggesting Judge Serghides should have instead given an image of asylum seekers on overcrowded, unseaworthy boats or travelling overland into Hungary or Slovenia; those have their own racist overtones and uses.
What he should have done, of course, was to give no example at all, and keep Roma out of it.
A Special Kind of Race-Baiting
I doubt Baroness Hale meets anyone’s definition of a racist, based on what I have read and heard her say. I have never read anything else from Judge Serghides, but I am willing to give him the benefit of the doubt. I am accusing them here of ignorance. But ignorance with consequences.
Their slips of the tongue reveal the antigypsyism in the air these judges breathe. They thought it was ok to talk about Roma the way they did because in Europe antigypsyism is ok. We accept statements about Roma that we would never accept about other ethnic groups. And, unwittingly, when they wrote these things, Baroness Hale and Judge Serghides confirmed something their readers believe – consciously or subconsciously – about Roma. The complex tangle of lies, theories, and excuses that form a racist ideology.
Race-baiting usually takes the form of statements that, on their surface, have nothing to do with race at all. Like when Ronald Reagan used to tell his stories about “a welfare queen” or a “strapping young buck” who was using food stamps to buy expensive steaks; everyone knew he was talking about Black people, and, by extension, condemning the use of federal money to support poor African-American families.
Here, these two ignorant judges are explicitly using the term “Roma” in the context of otherwise thoughtful (even progressive) judicial writing. Their intentions were different than the typical race-baiter, but the pattern is very similar: a seemingly harmonious chord in an impressive legal symphony in fact is the trigger for a very different, so-catchy-I-can’t-get-it-out-of-my-head tune that plays in the mind of the reader.
Footnote:
- It may very well be that the parents identified themselves this way. References to the parents’ ethnicity occur in the judgment of the Court of Appeal below as well. That does not justify to me making this Baroness Hale’s opening, or mentioning their ethnicity at all.
