Beyond Containment – Confronting Racial Hierarchies in International Law: Colonial Fantasies in the European Court of Human Rights

[Karla Schröter is a doctoral researcher at Åbo Akademi University, where she is part of the Institute for Human Rights and the Minority Research profile]

Veils worn by Muslim women, whether a hijab worn in public institutions or face-veils in public spaces, are being gradually banned in Europe. Sadly, the European Court of Human Rights (“the Court”) has repeatedly opined that restricting the use of veils in public is consistent with the European Convention on Human Rights — based upon the principles of secularism and of “living together”. While these cases have been heavily criticised by scholars, many analyse them through the lens of gender and religion. In my chapter in Emancipating International Law, I focus on whiteness and patriarchal structures, and how they intersect with religion, creating a triple bind for Muslim women. I use the framework of colonial fantasies to examine the ontologies that guide the Court in its reasoning. 

Fantasies are understood here as ontologies that provide a certain understanding of past and current events. According to Slavoj Žižek, every nation and empire is born out of violence, a past that it represses to create a perception of progress. In short, European empires, established through colonial violence, still largely deny the horrors perpetrated and, instead, created the narrative of a “civilising mission”. Because History is split in two (one that denies the violent past, and one that remembers it), the violent past must be forgotten to keep the fantasy intact, making it a forever haunting ghost that compels Europe to continue its cycle of (epistemic and material) violence. The chapter confronts these fantasies with the horrors they aim to deny, “putting together . . . the dismembered past to make sense of the trauma of the present” as expressed by Homi Bhabha.

I have chosen the framework of fantasies because they bridge the discrepancies between the narratives told and the actions taken by European institutions. Fantasies are never meant to reach their goals. Rather, they aim to live forever and to be acted out repeatedly, for example, as happened, first, in France’s colonisation of Algeria and, second, in the continued colonisation of Algerian peoples within French borders. As fantasies sustain what they claim to fix, they justify and reproduce themselves. While the fantasies become ontologies that create a past in which the White Man is a civiliser and a saviour, they also create a future in which he aims to become this. Fantasies thus generate never ending cycles, underscoring the importance of exposing them. 

In arguing that the Court’s veil cases are just one example in a stream of repeated cycles, I rely on examples taken from the French colonialisation of Algeria, while also adding examples from other colonial projects to illustrate how these fantasies are shared and acted upon on a European level. I turn to scholars such as Malek Alloula who analysed the distortion and fetishisation of Algerian women by French photographers during the colonial period, Meyda Yeğenoğlu who demonstrates that colonial fantasies are an integral part of the colonial project, as well as Frantz Fanon and Makau wa Mutua on the racialisation of (post-)colonial subjects.

The first fantasy of the chapter is the colonial dream, in which the White Man acts out his fantasy of saving the Muslim Woman from the dangerous Muslim Man. In the early hijab cases (Dahlab and Sahin), the Court presented the hijab in opposition to gender equality, which is purportedly protected by secularism. The Court’s position evolved and, in the face-veil cases (S.A.S. and Dakir), it no longer accepted gender equality as a justification for the bans. Nevertheless, it remained committed to its saviour fantasy, welcoming a law that held a man criminally liable for coercing a woman to veil, indirectly embracing the dangerous Mulsim Man stereotype. The chapter questions the framing of secularism as the protector of gender equality and explores the denial of agency, through examples of physical and symbolic violence inflicted on Muslim women by Europe as part of the saviour narrative. Yet again, the outcome of the cases forces Muslim women into precarious conditions as access to education, employment, and even healthcare can only be achieved by performing gender in a racially coded, White way. The discrepancies between the narrative and the consequences for Muslim women are significant, and it is only possible to rationalise the gap through the fantasy that consistently finds ways to frame Europe as the saviour.

In the second fantasy, the Muslim Woman becomes an object of conquest as the White Man conquers land and women’s bodies. The White Man’s conquest is blocked by the veil, an obstacle that must be overcome. Alloula demonstrates this dynamic in an analysis of  French postcards depicting naked or scantily clad Algerian women. These were instrumental in establishing this fantasy, while also taking revenge on a society that refused to yield and let the “civiliser” in. The frustration of being locked out of the Muslim Woman’s private sphere and the need to violently break in is captured by Europe’s obsession with accessing the women behind the veils and its demand to interact with her face-to-face, with or without her consent. As access to her body is vital for the White Man to live out his fantasy as a conqueror, it is irrelevant whether the face-veils actually hamper interaction or the conditions for “living together”, as argued by France, Belgium and the Court. Instead, as the fantasy is predicated on access to the Muslim Woman, the desire to enter her private sphere is prioritised over her bodily autonomy and right to practise her religion.

The final fantasy focuses on the colonial nightmare that arises when the Muslim Woman repudiates victimhood, refusing to subjugate herself to the White Man and his rule. Instead, she challenges him — for example by insisting on her rights — and in doing so becomes a threat to his empire. The coloniser fears the veil as he assumes that it  hides the Muslim Woman’s “real” intentions. Here the veil is seen to mock the White Man’s all-knowing presence. Using Fanon and Rodney’s work on European violence to establish colonial rule and the resistance against it, the chapter examines the veil’s symbolic value in anticolonial struggle. Because the White Man established his position through violence, deep down he fears the day of reckoning when he is chased out of the colony and loses his dominant position. He fears what is harboured under the veil, projecting his insecurities onto her and sees the veil as a plot against him. Such fear materialises in the Court’s questioning of the Muslim women’s commitment to secularism and equality, as well as her tolerance for pluralism, even asserting that the hijab is a threat to religious harmony and democracy itself, despite testimonies that show otherwise. The women become connected to political movements they never claimed. The woman who refuses to unveil only proves what the White Man already knows: that Muslims dangerous, justifying more exclusion. While human rights discourses are used to justify her exclusion and oppression, the Muslim Woman is accused of threatening human rights, making Europe a victim of her schemes.

The fantasies may begin with a putatively humanistic goal of “saving” Muslim women from their own religion, families, and traditions, but quickly descends into her fetishisation as an object of sexual desire. But, if she refuses his salvation or rejects the White Man’s gaze, she is vilified as the threatening “savage” plotting his destruction. The fantasies are not only about the Muslim women, but most importantly about how the White Man perceives himself. Each fantasy unites in upholding Europe’s self-professed moral superiority. 

By participating in these fantasies, the Court adopted the position of the White Man and linked itself to the chain of colonial violence. Through an analysis of the Court’s argumentation and paralleling it with historical and current counter-narratives, the chapter aims to displace the Court and the White Man from their fantasy and present them how they might be seen through the eyes of those who endure(d) Europe’s violence: as the oppressor.