PART I – WHAT IS ICERD? Illustration 10: Racial incitement or freedom of expression41 The Jewish communities of Oslo and Trondheim along with various individuals submitted individual communication No. 30/2003 regarding racist comments made by a member of the right-wing “Bootboys” in a speech commemorating a Nazi leader. The speech led to the speaker’s prosecution and eventual acquittal by the Supreme Court of Norway, on the grounds of freedom of speech. CERD decided that the communication was admissible. However, the State objected to the admissibility of the complaint, on the basis that none of the groups or individuals concerned were “victims” of the remarks in question; they were not present when the speech was made, and none of them had been singled out. It also argued that the authors had not exhausted domestic remedies, although the speaker could not be retried, none of the authors had ever complained about the speech to the authorities. However, CERD found that “victim” status could pertain to all members of a particular group of potential victims and that, although none of them had complained to the authorities, the authors had had no possibility of altering the course of the criminal proceedings against the speaker. In August 2005, CERD considered the merits of the complaint that the statements contained ideas based on racial superiority or hatred; the deference shown to the principles of former Nazi leaders had to be taken as incitement to racial discrimination, if not violence. On the issue of whether the incriminating statements were protected by the “due regard” clause in Article 4, the Committee considered that giving the right to freedom of speech a more limited role in the context of Article 4 did not deprive the “due regard” clause of significant meaning, especially taking into account that all international instruments protecting freedom of speech provide for the possibility of limiting, under certain conditions, the exercise of this right. As the incriminating statements were of an exceptionally offensive character, they were not protected by the “due regard” clause, and there had been a violation of Article 4 and consequently Article 6 of the Convention. 2.4 Equality in the enjoyment of rights (Article 5) Article 5 provides a non-exhaustive list of rights and States parties have the obligation to guarantee that everyone – regardless of race, colour or national or ethnic origin – can enjoy these rights. The list includes: a) the right to equal treatment before the tribunals and all other organs administrating justice; b) the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; c) a whole series of political and civil rights; d) a whole series of economic, social and cultural rights; e) the right of access to any place or service intended for use by the general public, including those privately owned, such as transport, hotels, restaurants, cafes, theatres and parks. According to CERD’s General Recommendation No. 20 (1996), Article 5 assumes the existence and recognition of human rights and requires States to prohibit and eliminate racial discrimination in the enjoyment of these rights. However, the Article itself does not create nor define civil, political, economic, social or cultural rights, thus there is space allowing the manner in which the acknowledgement and protection of these rights are translated into actual legal order and practice differ from State to State. At the same time, it is important to note that this Article and its interpretation are also open for further developments and elaboration of human rights. In interpreting Article 5, CERD makes a distinction between rights to be enjoyed by all persons living in a given State and rights of its citizens. While many of the rights and freedoms mentioned in Article 5 fall under the former, the right to participate in elections, to vote and to stand for elections are covered by the latter.42 In any case “human rights are in principle to be enjoyed by all persons” and States parties have the “obligation to 41 42 CERD annual report 2005, A/60/18, paras. 442-446 and Annex III, section A CERD General Recommendation No. 20, para. 3 9 ICERD & CERD: A GUIDE FOR CIVIL SOCIETY ACTORS