PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation placing them in schools that were meant for children with what were termed “mild mental disabilities”.343 Courts at European and national level have subsequently struck down practices such as tolerating the complete exclusion of Roma from schooling, pretextual placement of Roma in separate classes for reason of inadequate language ability, failure to overcome legacies of past segregation and establishing private schooling arrangements for the purposes of maintaining separate schooling on grounds of ethnicity. International law provides for the possibility of some justifications for separation on grounds of sex, religion or belief, or language, particularly in the field of education.344 However, authorities may not undertake racial discrimination under cover of pretextual arguments based on a purported need remedially to strengthen language ability;345 separation based on language is understood as allowed in cases in which instruction is in different languages.346 (f) Victimization or retaliation SUMMARY • Anti-discrimination legislation should prohibit victimization. • Victimization occurs when persons experience adverse treatment or consequences as a result of their involvement in a complaint of discrimination or proceedings aimed at enforcing equality provisions. Victimization – in some jurisdictions referred to as retaliation or reprisal – occurs when persons experience adverse treatment or consequences as a result of their involvement in a complaint of discrimination or proceedings aimed at enforcing equality provisions.347 This includes formal and informal complaints and legal or other proceedings brought by a victim or victims of discrimination, as well as those initiated by another person.348 The term “victimization” used in the present guide refers to this specific form of harm in antidiscrimination law and should not be confused with the common use of the term to refer to disempowerment of persons exposed to discrimination. As with other forms of differential treatment, intent is irrelevant for a finding of victimization.349 There are no valid justifications for a well-founded claim of victimization.350 343 The operation of such schools is itself contrary to article 24 of the Convention on the Rights of Persons with Disabilities. 344 For instance, the Convention against Discrimination in Education sets out, in article 2, the following situations that shall not constitute discrimination within the definition of the term given in article 1 of the Convention: (a) The establishment or maintenance of separate educational systems or institutions for pupils of the two sexes, if these systems or institutions offer equivalent access to education, provide a teaching staff with qualifications of the same standard as well as school premises and equipment of the same quality, and afford the opportunity to take the same or equivalent courses of study; (b) The establishment or maintenance, for religious or linguistic reasons, of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil’s parents or legal guardians, if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities, in particular for education of the same level; (c) The establishment or maintenance of private educational institutions, if the object of the institutions is not to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities, if the institutions are conducted in accordance with that object, and if the education provided conforms with such standards as may be laid down or approved by the competent authorities, in particular for education of the same level. 46 345 See, for example, European Court of Human Rights, Oršuš and others v. Croatia, Application No. 15766/03, Judgment, 16 March 2010. 346 A/HRC/43/47, paras. 41 and 44; A/HRC/10/11/Add.1, paras. 4, 10 and 27; CCPR/C/MKD/CO/2, para. 19; CRC/C/KGZ/CO/3-4, para. 59; and CRC/C/15/Add.191, para. 75 (b). 347 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 73 (i). 348 This can be inferred from the prohibition of discrimination based on association, discussed in section I.A.1(b) of this part, and indeed is the practice in many European countries. See Isabelle Chopin and Catharina Germaine (for the European Network of Legal Experts in Gender Equality and Non-Discrimination), A Comparative Analysis of Non-Discrimination Law in Europe, 2019 (Luxembourg, Publications Office of the European Union, 2020), pp. 96–99. 349 See the discussion of intent in section I.A.2(a) of this part. 350 In particular, due to the lack of a legitimate aim. See further, the discussion of justification in section I.A.4 of this part.