Anti-Discrimination Exceptionalism: Racist Violence before the ECtHR and the Holocaust Prism

European Journal of International Law, Volume 26, Issue 4, 1 November 2015, Pages 881–899

19 Pages Posted: 8 Mar 2018

See all articles by Ruth Rubio-Marin

Ruth Rubio-Marin

European University Institute; European University Institute - Department of Law (LAW); University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: February 12, 2016

Abstract

Over the past years, the European Court of Human Rights has significantly developed and strengthened its Article 14 non-discrimination jurisprudence, including in a number of ground-breaking international law cases establishing increased state responsibility with regard to ethnic segregation in education and gender violence. However, in the type of cases that constitute a large part of its non-discrimination case load, namely physical violence against racial minorities, the Court has so far failed to adequately address Article 14 discrimination claims raised by the victims. We posit that this could be caused in part by what we call the ‘Holocaust Prism’. Put briefly, the experience of the Holocaust has shaped the manner in which continental European courts understand racism and race discrimination, at least (or especially) when it is combined with violence. Paradoxically, this entails that in the most heinous cases of race discrimination, the discrimination threshold is raised to the level of criminal conduct. Moreover, to the extent that it is, only the ethnic dimension of such discrimination is foregrounded even in cases that present obvious intersectional (for example, ethnicity plus gender) dimensions. We exemplify this phenomenon by discussing recent case law on forced sterilization of Roma women and argue that the Court should become aware of this issue, recognize intersectional discrimination and align its case law on racist violence with the discrimination doctrine emerging in its gender violence and educational race segregation cases, both for the sake of internal consistency and to better capture the structural nature of racial discrimination in Europe.

Keywords: Race and Racism, EU Non discrimination Law and Policy

JEL Classification: K00

Suggested Citation

Rubio-Marin, Ruth, Anti-Discrimination Exceptionalism: Racist Violence before the ECtHR and the Holocaust Prism (February 12, 2016). European Journal of International Law, Volume 26, Issue 4, 1 November 2015, Pages 881–899, Available at SSRN: https://ssrn.com/abstract=3134044

Ruth Rubio-Marin (Contact Author)

European University Institute ( email )

Villa Schifanoia
133 via Bocaccio
Firenze (Florence), Tuscany 50014
Italy

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
ITALY

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
57
Abstract Views
376
Rank
673,491
PlumX Metrics