A/HRC/56/67 Racial Discrimination, the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence 3 articulated the obligations of States under article 2 (1) of the International Covenant on Civil and Political Rights in terms of the negative obligation to refrain from discrimination and the positive obligation to adopt protective measures. In its general comment No. 18 (1989) on non-discrimination, the Human Rights Committee made clear that fulfilment of the rights to equality and non-discrimination required positive action.4 69. Racist incitement may be expressed not only explicitly but also implicitly, relying on indirect language to disguise its targets or objectives and on coded symbolic communication to achieve its ends. In its general recommendation No. 35 (2013) on combating racist hate speech, the Committee on the Elimination of Racial Discrimination recommended that the criminalization of forms of racist expression be reserved for serious cases, to be proven beyond a reasonable doubt, that the application of criminal sanctions be governed by the principles of legality, proportionality and necessity and that less serious cases should be addressed using non-criminal sanctions.5 70. Racist or intolerant speech should not be used as a pretext for illegitimately quashing the right to freedom of expression to the detriment of groups protected by the International Convention on the Elimination of All Forms of Racial Discrimination, such as expressions of protest at injustice, social discontent or opposition. Likewise, the language of freedom of expression or association should not be used as a means of or cover for violating the right of others to equality and non-discrimination. The Committee on the Elimination of Racial Discrimination has highlighted that, although article 4 has operated as the principal vehicle for the prohibition of racist speech, the Convention contains other provisions essential for fulfilling the objectives articulated in that article. Article 4 expressly refers to article 5, which guarantees the right to equality before the law and the right to be free from racial discrimination in the enjoyment of rights, including freedom of expression. 71. The obligation to fulfil means that States undertake to eliminate discrimination in practice and to guarantee the effective enjoyment of the right to equality and non-discrimination. States must take action to combat intentional or purposeful racial discrimination in addition to de facto or unintentional racial discrimination. Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination and article 2 of the International Covenant on Civil and Political Rights make clear that effective protection from and remedies for racial discrimination are just as important as formal provisions. In Protecting Minority Rights: A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation6 it is reaffirmed that States do not meet their international legal obligations simply by defining and prohibiting discrimination; they must also, among other things, adopt positive measures designed to accelerate progress towards equality for those subjected to historic disadvantage or otherwise unable to participate on an equal basis. Promoting tolerance requires education and awareness. Article 26 (2) of the Universal Declaration of Human Rights stipulates that education is to promote understanding, tolerance and friendship among all nations, racial or religious groups. Article 7 of the International Convention on the Elimination of All Forms of Racial Discrimination requires States parties to adopt immediate and effective measures, in particular in the fields of teaching, education, culture and information, with a view to combating prejudices that lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnic groups. 72. The Durban Declaration and Programme of Action highlight education as key to changing attitudes and behaviour based on racism, racial discrimination, xenophobia and related intolerance and to promoting tolerance and respect for diversity in societies and 3 4 5 6 14 Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Human Rights Committee, general comment No. 18 (1989) on non-discrimination, para. 5. Committee on the Elimination of Racial Discrimination, general recommendation No. 35 (2013), para. 12. Office of the United Nations High Commissioner for Human Rights, “Protecting Minority Rights: A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation”, 2022. GE.24-08848