By Joëlle Fiss,
Pennoyer Fellow, Fighting Discrimination Program
To the utter consternation of the Swiss government, most political parties, non-governmental organizations, journalists, pollsters -- and even the Vatican, 57.5% of the Swiss population voted in a nationwide referendum last Sunday (29 November) to ban the construction of minarets on mosques in Switzerland. The outcome of the referendum has also drawn international criticism. The irony is, of course, that there are only four mosques with minarets in Switzerland. Clearly, this is not a conversation about local architectural planning or the preservation of landscapes, but it touches a deeper, raw nerve.
Switzerland is the first European country to ban the construction of minarets, adding an extra layer of discomfort to Europe's already tense relations with its Muslim citizens. Politically, the vote is embarrassing. Swiss Justice Minister Eveline Widmer-Schlumpf had warned against this referendum. Diplomatically, it will undoubtedly damage Switzerland's image abroad. But let's focus on how this result creates some peculiar challenges from a legal perspective.
Is the decision to ban the construction of minarets on mosques legal?
Legal experts are now questioning whether the ban conforms to international law, breaching the right to freedom of religion. This decision was adopted through a popular referendum, as a result of Switzerland's political system of direct democracy. Here's where it gets tricky: what do you do when a decision taken democratically might violate international law? Switzerland has ratified international treaties reaffirming the right to non-discrimination on the grounds of religion, in article 26 of the International Covenant on Civil and Political Rights as well as the European Convention of Human Rights (Article 9). The United Nations and the Council of Europe have expressed outright concern.
Swiss politicians are exploring the option of bringing this case to the European Court of Human Rights (ECHR) but it is not clear that the Court would take the case. Before being able to seize the court, the plaignants must have exhausted the grounds for appeal in their country. However, in Switzerland, it is not possible to seize the federal court against the result a popular vote. If a legal solution is found to this obstacle and the case is brought to the ECHR, it is still not clear what the outcome would be given recent decisions to permit restrictions of the practice of religion in the name of preserving the secular character of the state. In 2005, in the Leyla Sahin v Turkey case, the ECHR ruled that Turkey was authorized to ban Islamic headscarves in universities, rejecting an appeal by a Turkish woman who argued that the state ban violated her rights. The ruling was reaffirmed in 2009 when the ECHR ruled in favor of a French school that expelled two Muslim girls for refusing to remove their headscarves for physical education classes.
Beyond the legal question, a societal issue
Beyond the legal question, the vote reflects the larger societal issue of the growing fear of "the other" and the rise of extremist views in Europe. For example, the campaign triggered hate speech against Muslims. Posters displayed portraits of women in chadors next to wrecked Swiss flags covered by missile-looking minarets. Muslims were associated to danger. Such stereotyping can lead to a climate of increased racism. If the climate of hatred rises, then racist violence and hate crimes tend to ascend too. Left unchallenged, fears and assumptions could well lead to indifference to abuses committed against members of minority groups or, worse still, to impunity for violent hate crimes committed against them. Read Human Rights First's report card on Swiss government monitoring, reporting, and criminal law on hate crime.
To some extent, the damage is done, whether the legal question will be resolved or not. The results of the referendum have produced a domino effect: extremist political parties in Belgium and the Netherlands have announced their wish to table similar proposals in their countries. The revisionist Front National party from France has praised the result. This will only fuel the hateful discourse of some and weaken the sense of security for many bewildered Muslims. There is a pattern of racially and religiously motivated violence against Muslims-- and those perceived to be Muslims-- in many parts of Europe and North America, yet few governments have the tools to address this adequately. Most states collect insufficient data on anti-Muslim hate crimes and there is a need to record more cases to detect the trends to tackle the problem.
In its 2008 Hate Crime Survey, Human Rights First reported many cases of violence, including assaults on individuals and attacks on places of worship and cemeteries. These occurred in many countries, including the United States, Austria, Belgium, Bulgaria, Denmark, France, Germany, Italy, Kosovo, the Russian Federation, Serbia and the United Kingdom. You read more about it here.