PART I – WHAT IS ICERD? 2.2 Racial segregation and apartheid (Article 3) Article 3 condemns racial segregation and apartheid. Initially this Article was often interpreted as directed exclusively at South Africa. However, the Committee makes it clear in General Recommendation No. 19 (1995) that Article 3 prohibits all forms of racial segregation in all countries, including unintended segregation in housing and/or education. States also have the obligation to eradicate the consequences of such practices undertaken or tolerated by previous Governments. The Committee regularly expresses concerns and makes explicit recommendations on the issue of racial segregation, especially in sectors such as housing and education.39 In most cases, CERD addresses this issue in relation to the situation of ethnic or national minorities, and in particular Roma and descent-based groups such as Dalits. 2.3 Prohibition of racial incitement (Article 4) The Committee has repeatedly emphasized the paramount importance of Article 4, which puts a limit on the excessive exercise of freedom of expression “with due regard to the principle embodied in the Universal Declaration of Human Rights.” Furthermore CERD has issued three General Recommendations on this topic; No. 1 (1972), No. 7 (1985) and No. 15 (1993). Under Article 4, States parties must declare an offence punishable by law following acts: • • • • The dissemination of ideas based upon racial superiority or hatred; Incitement to racial discrimination; Acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin; Provisions of any assistance to racist activities, including their financing. Additionally, organizations as well as their activities and propaganda, which promote and incite racial discrimination, must be declared illegal and be prohibited (Article 4 (b)). Belonging to such organizations as well as participating in such activities are also to be treated as a criminal offence. Article 4 (c) underlines the obligation of the States parties to prohibit any public authority or institution at all administrative levels from promoting or inciting racial discrimination. Full compliance with Article 4 is a particularly complicated issue in many countries because the line of upholding the States obligations under this Article and respecting the freedom of expression and association is often blurred. States frequently use the argument of protecting the freedom of expression and association to justify noncompliance with Article 4. There are also countries with reservations to Article 4 (20 States parties as of 5 July 2011, cf. Annex I). In response the Committee has taken a robust position on the implementation of Article 4. In its General Recommendation No. 15 (1993), the Committee clarifies that “the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression” which is embodied in the Universal Declaration of Human Rights (Article 19) and recalled in the Article 5 (d) (viii) of ICERD.40 Referencing Article 29 (2) of the Universal Declaration, CERD further stresses that the citizen’s exercise of the right to freedom of opinion and expression carries special duties and responsibilities including the obligation not to disseminate racist ideas. 39 For example, in the consideration of States reports in 2009: Azerbaijan (Concluding Observations para. 15), Croatia (Concluding Observations para. 14), Ethiopia (Concluding Observations para. 15), Finland (Concluding Observations para. 17), Pakistan (Concluding Observations para. 12) and Turkey (Concluding Observations para. 13). In 2008: Belgium, Fiji, Italy, Namibia, Russia, USA (CERD Annual Report 2008, A/63/18, paras. 81, 174, 236, 294, 377, 487 and 488). In 2007: Antigua and Barbuda, Czech Republic, India, Israel and DR Congo (CERD Annual Report 2007, A/62/18, paras. 45, 110, 111, 171, 183, 215 and 330. 40 CERD General Recommendation No. 15, para. 4 8 ICERD & CERD: A GUIDE FOR CIVIL SOCIETY ACTORS