THE STRASSBOURG ADDITIONAL PROTOCOL AGAINST RACISM AND XENOPHOBIA PRACTICED BY THE MEANS OF COMPUTER SYSTEMS
Flávio de Leão Bastos Pereira
Attorney at Law, Professor of Constitutional and Human Rights Law at Mackenzie University
(São Paulo-Brazil), Master Degree in Political and Economical Law, Member of International Network Genocide Scholars – InoGS, Researcher at the Federal University of São Paulo (UNIFESP), at the Research Group Wars, Massacres and Genocides at
the Contemporary Era.
Member of Inter-American Bar Association – IABA
[email protected]
I. INTRODUCTION
Of great importance, the Additional Protocol to the Convention on Cybercrime, criminalizing the act of xenophobia and racism practiced by the means of computer systems, was opened to signatures in Strasburg, on January 28, 2003. This protocol is of great significance to the world, and considering our own interest, to the Americas, to the New World.
The issue is not recent. New are the means being utilized for the practice of the hate incitation felonies motivated by racial, ethnic, or religious intolerance. On the other hand, new are the instruments that the same technology made possible which make faster the diffusion of ideas that defend the decriminalization or the destruction of individuals or of groups, relying solely on the fact that they belong to a different race or ethnicity.
It is a known fact that, since the beginning of men-kind, the maintenance of peace between the people depends exclusively on the equal and humane treatment of the people, treatment usually discarded for foreigners. And then, the first law of Zeus, with the name of “Ksenia”, determined that all mortals, more specifically the house-owners, to welcome all foreigners that would knock on their doors, giving them the best of hospitality.
The term gave birth to the Greek word “Xeno”, now being used to describe the foreign person.
According to Immanuel Kant, “the right of the cosmopolitan should be limited to the conditions of universal hospitality.” (Third Definitive Article for the Perpetual Peace – “Perpetual Peace – A Philosophical Essay”, 1795).
The divine law intended to spread the idea that if the foreigner were wellreceived, so would the host once he were in foreign lands, perpetuating with the fulfillment of the law, the peace in the world, distancing from war, known as “polemis”. From there, the English word, “polemic”.
Subsequently, the term xenophobia was shaped, that is, the fear of foreigners. However, the world is very aware of the fact that the biggest atrocities committed against the men-kind, were based exclusively on the difference between races or religion.
The racial intolerance against the foreigner has conceded the pretext for the establishment of policies of excluding nature, discriminatory purpose, and worse, of execution.
The current structure of the international justice system, being no different, was inspired by the human experience on this planet. Especially in the traumatic World Wars, when the rupture from the human rights was clear because of the recognition of the human personality only on certain human beings that belonged to certain specific races, as it was previously announced by the national-socialist doctrine.
While the text of the futurist Emmanuel Kant, that in the 18th century preached
the existence of an international brotherhood society of equality and justice, was
being forgotten, a new instrument for the diffusion of the racist ideology was being
perfected and widespread:
We refer to, in this manner, to the term “propaganda”. Josef Goebbels knew, like no one ever would, how to apply its principles in a very effective way throughout all of taken Europe.
The method of exclusion seeks to emphasize a probable level of threat in everything and everyone that was different from the culture and the biotype of the “Aryans” considering Joseph Arthur de Gobineaud’s initial theory, in his “An Essay on the Inequality of the Human Races” (1853/1855), in which he defended the inevitable decadence of the races caused by miscegenation, or the mixing of races. Such ideas were reinforced by Ludwig Schemann and by the British Germannaturalized Houston Stewart Chamberlain that, in 1899, published in Germany “The foundations of the Nineteenth Century”, work in which he defended the Eastern Aryan race to be the responsible for the great accomplishments of the European
people, and the Jews, the complete opposite, being responsible for all the negative aspect of the European Nation. On this thesis, you will also find “Ethic, Rights, Moral, and Religion in the Modern World”, from the professor of Law from the University of São Paulo, Fábio Konder Comparato, Cia das Letras publisher, SãoPaulo, 2006.
Traumatized, the World prioritized the necessity to guarantee the elementary human rights, without conditioning anyone to belong to a certain race that is considered to be superior.
In addition, there is scientific proof that only one race exists: the human race. What happens nowadays, understood only by our humble reflections, is once again the development of a new mechanism of diffusion and transmission of ideas that goes beyond the well-known instruments of publicity and propaganda: the internet.
The internet is, with no doubt, the most efficient way of diffusing great ideas and the democratization of information. However, it has also been utilized as an instrument of spreading of xenophobic and racist ideals that will be further on explained.
II. THE EUROPEAN EXPERIENCE AND THE ADDITIONAL PROTOCOL TO
THE CONVENTION ON CYBERCRIME
The European Nation was stage for the biggest atrocities ever seen in the world. In it today, we find concrete signs of the extension of what is capable to be done by a society when its ruling is done on top of nationalism, ethnic and racist pillars. Between April, 1915 and 1923, more than one million and a half of Armenians were murdered by the Ottoman Empire (the nationalist government of the young turkeys).
This genocide, that completes one hundred years of its occurrence in 2015, was the precursor and the prototype for modern genocide.
Towards the racist policies consequences, the intensity of the phenomenon can be seen and verified in the State-owned Polish museum of Auschwit, as the utmost illustration of all.
The moral, so it seems, has been forgotten, if mentioned most recent racist experience, like the genocides of Srebrenica, in the Balkans (war in the 90’s), Ruanda (1994), and even more modern, in Darfur.
In all cases the strength of propaganda and the hate inciting cases were made present. In the example of Ruanda, radio frequencies were used as one of the decisive factors of the scattering of the hate nurtured by the Hutus in relation to the 1 MELSON, Robert F. The Armenian Genocide as Precursor and Prototype of Twentieth-Century Genocide.
Minority co-patriots, the Tutsi. As the popular radio stations like “Rádio Ruanda” and “Rádio Mil Colinas” openly preached hate and the destruction of such minority, they were being killed by knifes and machetes, reaching the number of 800 thousand murdered. Men, women and children, killed between April and June of 1994. Even for the denial of the occurrence of a genocide, like the Armenian genocide, the propaganda is a strong instrument for that.
Marc Mamigonian explains about a “rethoric and techniques of this ongoing and evolving academic campaign to roll out a ‘counter-genocide narrative’ for the purpose of creating a permanent haze of doubt around the Armenian Genocide, and normalizing and legitimizing the Turkish state’s narrative of genocide denial.”2 The European Community, based on the idea that every human being is born free and equal in dignity and rights, strongly defends the complete implementation of the human rights without any discrimination or distinction, just like the legal community and the international community recognizes. Doing so, it establishes
legal means to combat and to condemn racist and xenophobic propaganda, increased
by the means of computerized systems.
Such instruments, in their initial conception, presume that:
1. Xenophobic and racist acts are violation of the Human Rights, and a threat to the right of establishment of democratic societies.
2. Instruments for International cooperation, and rules that are modern and flexible enough to combat the racist and xenophobic propaganda through computers.
3. The existing laws related to the racist and xenophobic propaganda should be more harmonious.
4. The systems existing in computers nowadays offer and easy access to the communication and freedom of speech around the globe, freedom that is considered to be the fundamentals of a democratic society and its basic condition for its progress and the evolution of any human
being. 2 MAMIGONIAN, Marc. Scholarship, manufacturing Doubt and Genocide Denial. The Armenian Weekly, p.41, April, 2013.
5. Must be assured, that in the usage of the computer systems, an ideal equilibrium should exist, between the freedom of speech” and the struggle against racist and xenophobic acts.
With that explained, in very objective terms, the main goal of the additional Protocol of Strasburg was to complement the Convention on Cybercrime, signed on November 23, 2001, in the capital of Hungary, Budapest, for the criminalization of the acts of racism and xenophobia committed through the means of computer systems.
As to the definition of what kind of material would be considered to be offensive against races or culture, “any written material, any image, or any other kind of idea representation or theories that support, promote, or incite hate, discrimination, or violence against any individual or group of individuals, based in their race, color, origins, being that regional or ethnic, as well as the ones based on religion, when considered to be a pretext for the practice of such racist or xenophobic acts.”
Between different substantial and legal beliefs, the signing countries commit themselves to adopt the legal measures necessary to criminalize, under their own set of rules and National laws, when executed intentionally and without just cause, the following conducts:
1. Distribute or make available to the public, materials that have racist and xenophobic content, through the means of the computer (article 3).
2. Threat people, using a computer, making use of the practice of severe offense of criminal intent according to their own domestic laws, only for the reason that they belong to a distinct group because of their color, race, ethnic or national origin, as well as their religion, when such factors are the reason of the threat (Article 4).
3. To insult people, publicly or with the use of computers, only for the reason that they belong to a distinct group because of their color, race, ethnic or national origin, as well as their religion, when such factors are the reason of the threat (Article 5).
4. Distribute or make available, through the use of computers, any material that denies, minimizes, defends or justifies acts that are considered to be genocide or crime against the humanity, as defined by recognized International law, as a final resolution, by the International military Court, established by the London Agreement of August 8, 1945, or by any other International Court established by relevant international instruments, that are recognized by the signed countries (Article 6).
5. To collaborate, or act as an accomplice, in the practice of any form of offense established in the terms of the Additional Protocol to the Convention on Cybercrimes, with the intention of committing them. Therefore, always conscious of conducting the communing spirit that guides our evolution towards the future and as a more egalitarian society, at least in the political
and juridical plans.
With the Additional Protocol as a guide, the European Union solidifies another step toward the 21st commandment from the Charter of Fundamental Rights, that defends the non-discrimination by prohibiting the discrimination based on sex, race, color, ethnical or social origin, genetic characteristic, idiom, religion or conviction, political opinions, belonging to a national minority, because of wealth, birth, disability, age, or sexual preference.
III. CHALLENGES IMPOSED BY THE TECHNOLOGY OF INFORMATION
Since the most ancient time in the evolution of the commerce between the Nations, the humanity started its long walk in the direction of a “global village”.
Such ideas become heavier when considering the Industrial Revolution, the creation of the United Nations after the World War II, the configuration of community blocks, and lately, the environmental challenge, and, mainly, the dawn of the internet.
Boundaries and sovereignty are now relative concepts, because of the increase of the inter-dependence between nations and individuals.
In the same way, the practice of felonies committed in the world web of computers, in our analysis, the range of the racist and xenophobic appeal won greater area, efficiency, speed, and affecting capacity; the systems of computers made possible the articulation of racist groups with headquarters in the most distant places of the world.
Even in countries famous for the combination of races, like Brazil, the racist websites multiply every day.
A recent and never seen case, noted for its organized structured, was the discovery of a neo-Nazi movement named NEULAND, or, “new land”, in German.
The organization is composed of 350 members, with well-defined political projects, both middle and long-term, like the creation of parties and the election of parliamentary representatives; distinct cells, like military, politics, and propaganda; the discrete action before the society; the acceptance of a new member after rigorous and doctrinal examination, based on current revisionist view on the holocaust; and, the most important for our discussion, pages made available in the internet, such as the online magazine “O MARTELO”, or “THE HAMMER”, created by the head of the movement, Bernardo Dayrell., currently arrested in Brazil.
The racist group NEULAND has connections with neo-Nazi groups of Argentina, Chile, England, France, etc.
Other racist and neo-Nazi groups were formed with the use of the world web of computers. According to the Brazilian researcher and anthropologist Adriana Dias, from the State University of Campinas, UNICAMP, the total number of neo-Nazi websites in 2007 was 13,000, and in 2009 already reaches the elevated amount of 20,000 websites.
Specialists are unanimous in the decision that oppression is the main barrier that racist and xenophobic groups ought to encounter. The internet imposes that international players act on the oppression of the racist groups, as well as the democratic countries, that still struggle over territory. In which territory, for example, has the offense of spreading racist material
happened?
It brings about, consequently because of the internet, a land with indefinable frontiers, subtly visualized in the mist of the virtual world, more specifically, the global world.
The actions performed over the internet range from the propaganda and the making available of xenophobic and racist content, to the realization of terrorist attacks against minorities. They should be considered as crimes practiced not only in the territory of the country where the initial contact is made and the intellectual articulation for the diffusion of racist propaganda, or where the act of racist terrorism is performed, but also in the territory that is effectively practiced.
Another element of vital importance is the identification of the electronic address, known as the IP, Internet Protocol.
The identification of the IP allows the important connection between the virtual and the real worlds. What happens, most of the times, is that a racist site is hosted in a third country, and the physical structure of the organization is found on the territories of a different Nation.
In this case, the investigation and oppression should be performed in a combined a coordinated way between all the countries involved.
From that point, the necessity of the adoption of a legal instrument grows in the Americas, similar to, and with the same objectives as the Additional Protocol to the Convention on Cybercrime, signed in Strasburg in 2003.
One more challenge that the internet presents is, before the practice of cybercrimes, especially the ones that deal with racism and xenophobia, the factor of time.
This means that the cyber-criminals have time in their favor, in the same speed that the spreading and dissemination of racist and xenophobic ideas happen, as well as making available revisionist material, that denies or justifies the holocaust and the genocides committed under racial pretext, between other possible crimes, are all occurring with such speed that makes difficult the action of the ruling authorities.
Such fact relates to itself in its denomination in digital law, “passive time”, or, as Brazilian lawyer Patrícia Peck Pinheiro defines, “that which is explored mainly by the criminals, with the belief that the delay in the legal system will discourage the victim to make his own rights effective.” (“DIGITAL LAW”, P. 37, 2ND edition, Saraiva publishing, São Paulo, 2008).
But the action of the racist groups over the internet promotes chain affects as well, not only being about the “passive” aspect. The author mentioned above teaches about the “reflexive” time in digital law, exemplifying with favorable situations for the practice of crimes over the internet.
Therefore, the practice of crimes that are exemplified in the Additional Protocol of Strasburg creates damaging effects to the human being and to democracy, in a quick enough way that demands promptness and coordination of competent authorities, always respecting the constitutional principles of each country and also protected by the Universal Declaration of Human Rights, in which all of the humans have a part in.
However, besides the oppressive method, another way has proved to be of great importance for the combating of racism over the internet, from the simple fact of drilling a fundamental factor in the raising of the youth, where in the internet children and teenagers find enjoyment. We simply refer to an education system directed to the respect of the human and plural values.
Without a distinct educational action, in the sense of teaching moral and ethical values of major importance to an evolved society, the struggle with racism would have its success compromised.
Therefore, the norms of the governments that are combating racism and xenophobia should be evaluated accordingly to the educational measures, which also should be a part of international regulation.
IV. FREEDOM OF SPEECH, OF THOUGHT, AND OF INFORMATION
The freedom of speech, of thought, and of information, are also granted rights, accepted by greater part of the nations (Articles 10 and 11 of the Charter of Fundamental Human Rights of the European Union; Article XIX of the Universal Declaration of Human Rights; Article 13, no. 1 of the American Convention on Human Rights, amongst others) However, it is understood that such freedom may not be considered absolute if, in the other hand, it hinders the human right to no racial, ethnical, or national discrimination, and so on.
Restating, the dissemination of racist ideas facilitates the progress towards the practice of crimes against humanity, genocide, etc. Indeed, the International Pacts highlight the limits to the freedom of speech and of information, by imposing that the laws should forbid any type of mention to racial, national, or religious hate that constitutes in inciting discrimination, hostile behavior, crime, or even violence, as verified by the item 5 of the article 13 of the American Convention on Human Rights (San Jose, Costa Rica, November 22, 1969); the article 20, no.2 of the International Pact on Civil and Political Rights (New York, 1966), among others.
The repression of the crimes of dissemination of racist and xenophobic ideas through the internet in the Americas, as long as conducted under specific democratic principles, lined up with the main international treaties, makes it an important instrument if implemented urgently, not ever offending the sacred rights of freedom of speech and of information.
V. THE ACCEPETANCE OF THE NORMS FROM THE ADITIONAL PROTOCOL OF STRASBURG IN THE AMERICAS
The acceptance or at least the adoption of the international norms inspired on the additional protocol, according to our humble understanding, is possible and very recommended, not only under the view of the human rights pact already in place in the Americas, but also before the constitutional structure of the majority of the American countries.
For the sake of citing a few, the Constitutions of Brazil (article 5); of Mexico (article 3, I,C); of Argentina (article 16);of Chile (articles 1 and 19); of the United States of America (XIV amendment, section 1); of Uruguay (article 8), between others.
The treaties, conventions, and international pacts also provide evident support for the acceptance or the adoption of the norms that have as objective to fight the criminal actions of racism and xenophobia over the internet, under the standards of the “Additional Protocol to the Convention on Cybercrime from Strasburg, in 1003, firmed in Budapest in 2001”. They are:
1. American Declaration of the Rights and Duties of Men (1948), articles I to II, and XXIX;
2. Universal Declaration of Human Rights (1948), articles I, II, VI, and VII; XXIX no. 2
3. Convention on the Oppression of the Crime of Genocide (1948; internationalized in January 12, 1951), specifically articles 3, 4, 5, and 6;
4. International Convention on the Elimination of All Forms of Racial Discrimination (New York, March 3, 1966), in particular articles II and IV;
5. International Pact on Civil and Political Rights (United Nation general council, NY, December 12, 1966), especially articles 2 no. 1, and 20 no. 2;
6. American Convention on Human Rights (San Jose Pact, Costa Rica – November 11, 1969), focus to articles 1 no.1, and 13 no. 5.
The adoption of the norms that criminalize racial and xenophobe conducts described in the Additional Protocol of Strasburg, in the Americas, should lead the American democracies to a greater integration with other democracies of the World, by means of the combat to an evil that has caused destruction of part of the planet and of over 50 million lives, all in the recent past.
The experience clearly demonstrates that we cannot be blind to such ideologies that quietly seek to plant its destructive seeds in the basis of the democracies, compromising the human rights that today are esteemed. At this point, we mention Machiavelli, when he taught us that:
“He who studies carefully the past will be able to predict the results that will be produced in each State, and utilize the same means once used by the ancient. Or else, if there is no more medicine used previously, imagine other new ones, according to the resemblance of the happenings.” (Speeches, Book I, Chapter XXXIX)
VI. CONCLUSION
We believe, honestly, in the legal and political possibility of adopting the main ideas and objectives before the Additional Protocol of Strasburg, by means of a pact firmed between the American nations.
Technological innovations caused the mutation of elements that were once solid and absolute to become relative, such as territory and sovereignty. The time and the amount of information made available, the urgency and quick response that is demanded from the democratic governments in such matter are much more visible.
Although scientifically demonstrated recently, the false idea of separate races, one superior to the other, innumerous racist and xenophobic groups insist in putting at steak the democratic stability of the global society, making use of the internet for a wide variety of crimes, all related to racism and xenophobia.
For this reason, an articulated action is advised, quick and stiff from our governments, be it in the political and law plans, be it in the education system and oppressive techniques.
We conclude with a reflection from the Professor François Perroux, from the Law School of the University of Paris, written in the year of 1937, in his masterpiece “THE HITLER MYTHS – PROBLEMS OF CONTEMPORARY GERMANY” (Companhia Editora Nacional, São Paulo, Brazil, 1937, by FRANÇOIS PERROUX, Law School of the University of Paris, 1937.
“In the characteristic of men, the next right has to do with us. We reject the moral that burns the ghettos… Each one of us will add to this universalism whatever one understands; but when it comes to talking about the rights of men, as men, we wish to be unanimous and intend not to give up. In the struggle against blind things, we idealize a fraternity between all men-kind, and in mutual aid we decide to work little by little. Between ROSENBERG and SOCRATES, our choice is made.”
