The Dangerous Idea of Protecting Religions from “Defamation"

Posted by johnhouk on Nov 14, 2009
Here is some specific criticism on the United Nations’ goal of making Islam impervious to criticism thus eliminating Free Speech.

JRH 11/14/09 (Hat Tip: Ben’s Blog)
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The Dangerous Idea of Protecting Religions from “Defamation”: A Threat to Universal Human Rights Standards

Policy Focus
UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM
Fall 2009

Executive Summary

Over the past decade, countries from the Organization of the Islamic Conference (OIC) have been working through the United Nations system to advance the problematic idea that there should be laws against the so-called “defamation of religions.” Although touted as a solution to the very real problems of religious persecution and discrimination, the OIC-sponsored UN resolutions on this issue instead provide justification for governments to restrict religious freedom and free expression. They also provide international legitimacy for existing national laws that punish blasphemy or otherwise ban criticism of a religion, which often have resulted in gross human rights violations. These resolutions deviate sharply from universal human rights standards by seeking to protect religious institutions and interpretations, rather than individuals, and could help create a new international anti-blasphemy norm.

In addition to seeking a new norm through these resolutions, OIC countries have argued in various UN contexts that existing international standards prohibiting advocacy of hatred and incitement already outlaw “defamation of religions.” However, the provisions on which they rely—Article 20 of the International Covenant on Civil and Political Rights (ICCPR) and Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)—provide only limited exceptions to the fundamental freedoms of expression and religion. These provisions were intended to protect individuals from violence or discrimination, not to protect religious institutions or ideas from criticism, and they should not be expanded to cover allegedly religiously defamatory speech. Such an expansion, which unfortunately may have been lent support by new language on negative religious stereotyping and incitement in a recent UN Human Rights Council freedom of expression resolution, would undermine international human rights guarantees, including the freedom of religion. It also would undermine the institutions that protect universal human rights worldwide.

Analysis
The Flawed “Defamation of Religions” Concept

Since 1999, the OIC—a regional organization comprised of 57 nations with Muslim majority or significant Muslim populations—annually has sponsored resolutions in the UN Human Rights Council and its predecessor, the UN Commission on Human Rights, calling on UN member states to outlaw the so-called “defamation of religions.”1 Similar resolutions have been adopted at the UN General Assembly each year since 2005. At the Human Rights Council in Geneva, these efforts have been led by Pakistan; Egypt has played a leading role at the General Assembly in New York. The OIC has indicated that the goal of its efforts is the adoption of a binding international covenant against the “defamation of religions.”

Although these resolutions purport to seek protection for religions in general, the only religion and religious adherents that are specifically mentioned are Islam and Muslims. Aside from Islam, the resolutions do not specify which religions are deserving of protection, or explain how or by whom this would be determined.

The resolutions also do not define what would make a statement defamatory to religions or explain who decides this question. For its part, the OIC appears to consider any speech that the organization, or even a cleric or individual, deems critical of or offensive to Islam or Muslims to automatically constitute religiously defamatory speech.2 This view goes far beyond the existing domestic legal concept of defamation, which protects individuals against false statements of fact that damage their reputation and livelihood. Implementing this approach would violate provisions of the Universal Declaration of Human Rights and various human rights treaties that protect, with only narrow exceptions, every individual’s right to receive and impart information and speak out.

In terms of states’ practices, there is no universal approach toward “defamation of religions.” The UN High Commissioner for Human Rights conducted a survey in 2008 and found no common understanding of the concept among those countries that said they had laws on the issue. Instead, the report found that the laws surveyed addressed “somewhat different phenomena and appl[ied] various terms such as contempt, ridicule, outrage and disrespect to connote defamation.”3

In essence, the “defamation of religions” resolutions are an attempt to export the repressive blasphemy laws found in some OIC countries to the international level. Under these laws, criminal charges can be levied against individuals for defaming, denigrating, insulting, offending, disparaging, and blaspheming Islam, often resulting in gross human rights violations. In Pakistan, for example, domestic law makes blasphemy against Islam a criminal offense subject to severe penalties, including death. Extremists have abused these broad provisions to intimidate and arbitrarily detain members of religious minority communities, including disfavored minority Muslim sects, and others with whom the extremists disagree, and unscrupulous individuals have misused them to settle personal scores. Blasphemy allegations in Pakistan, which are often false, have resulted in imprisonment on the basis of religion or belief and/or vigilante violence. In Egypt, charges of blaspheming or insulting Islam have been used by the government to imprison purportedly “unorthodox” Muslims and individuals, including bloggers, who have called for political and religious reforms.

The “defamation of religions” resolutions commonly have come before the UN General Assembly in the fall and the UN Human Rights Council in the spring, and they continue to be adopted each year in each body. However, since 2008 the support for these problematic resolutions has been eroding. The last three times they were considered, the votes in favor decreased from a majority to only a plurality of member governments. At both the March 2008 and March 2009 Human Rights Council sessions, as well as the December 2008 General Assembly, the combined number of no votes and abstentions outnumbered the yes votes, although the resolutions still were approved. UN representatives from Asia, North America, and Europe, including the Holy See, have consistently voted or spoken out against the concept.

Notably, in December 2008, the four international experts serving as freedom of expression rapporteurs of the UN, the Organization for Security and Cooperation in Europe (OSCE), the Organization of American States (OAS), and the African Commission on Human and Peoples’ Rights (ACHPR) issued a joint statement urging international organizations to stop supporting the idea of “defamation of religions,” because it “does not accord with international standards accepted by pluralistic and free societies.”4 The UN Special Rapporteur on the Freedom of Religion or Belief likewise has spoken out against the concept, pointing out that international human rights law protects individuals, not belief systems, and the individual right to freedom of religion or belief does not include the right to have one’s religion or belief be free from criticism. To the contrary, as the Special Rapporteur has noted, “the recognition, respect and practice of religious pluralism . . . encompasses criticism, discussion and questioning of each other’s values.”5

Erroneous Efforts to Conflate “Defamation of Religions” and Incitement

In addition to seeking a new norm through the resolutions discussed above, countries advancing the flawed “defamation of religions” concept also have argued that existing international norms against incitement already outlaw speech insulting or criticizing religions. They mainly cite the prohibition of “advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence” in Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR). They also sometimes cite Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), even though this treaty addresses race, not religion. ICERD Article 4 prohibits the “dissemination of ideas based on racial superiority or hatred” and “incitement to racial discrimination, as well as acts of violence or incitement to such acts.” (The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, which is not a treaty, does not contain a prohibition on incitement to religious discrimination.) The United States has reservations to both ICCPR Article 20 and ICERD Article 4 to the extent that they interfere with rights protected under the U.S. Constitution. A number of other countries also have made reservations or declarations to these provisions.6

The efforts by the “defamation” proponents to redefine and significantly broaden these two provisions to encompass allegedly religiously defamatory speech are of serious concern. ICCPR Article 20 and ICERD Article 4 have always been limited exceptions to the fundamental individual freedoms of expression and religion meant to protect individuals from violence or discrimination, not to protect religious beliefs from criticism. They also have always been interpreted together with treaty provisions that protect the freedoms of religion and expression, ensure equality before the law, and prohibit any measures that would destroy guaranteed rights.

Attempts to conflate “defamation of religions” and incitement are underway at the Human Rights Council’s Ad Hoc Committee on the Elaboration of Complementary Standards, which is discussing a possible additional protocol to the ICERD, as well as the UN Human Rights Committee (the treaty body that issues interpretations of the ICCPR), which is working on a new General Comment on freedom of expression.

The OIC also sought, but failed, to insert language outlawing the “defamation” or “negative stereotyping of religions” in the outcome document of the April 2009 Durban Review Conference.7 Instead, a compromise was reached to (1) replace the term “defamation of religions” with incitement language from ICCPR Article 20 and (2) include a phrase deploring “the derogatory stereotyping and stigmatization of persons based on their religion or belief,” a somewhat better approach because it focuses on individuals, not religions. Observers noted the importance attached to this issue by the fact that the final outcome document contained eight references to incitement.

At the September 2009 UN Human Rights Council session, the United States and Egypt co-sponsored a compromise resolution on freedom of expression, surprising many in the human rights community. Like the Durban Review Conference outcome document, this resolution, which sought to find common ground between the “defamation” proponents and opponents, does not specifically mention “defamation of religions.”

Rather, it refers to negative religious stereotyping, thereby arguably focusing on individuals rather than belief systems—though less so than the Durban Review document’s reference to stereotyping of persons based on their religion or belief. It also does not call for any legal measures prohibiting or criminalizing negative stereotyping, but instead expresses concern about it.

Nevertheless, the “defamation” proponents appear to view these two concepts as indistinct. In explaining the OIC’s support for the resolution, Pakistan expressly equated negative religious stereotyping and “defamation of religions,” and emphasized that “this defamation applies not only to individuals, but also to religions and belief systems.”

In addition, in the same paragraph that refers to negative religious stereotyping, the U.S./Egypt resolution condemns “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”—language taken directly from ICCPR Article 20(2)—and calls on states to “take effective measures, consistent with their international human rights obligations” to address such advocacy.

To be sure, the United States previously has supported UN resolutions on religious intolerance that condemn, but do not require laws against, incitement. In addition, without an express call for legal prohibitions, the new resolution does not run afoul of the U.S. Article 20 reservation insofar as it applies to the United States. However,the U.S./Egypt text does give the United States’ imprimatur to the demand that other countries that have accepted such legal obligations take effective measures to enforce them. Moreover, the resolution’s language is sufficiently broad to allow the “defamation” proponents to interpret it as supporting their efforts to redefine the existing incitement provisions. Indeed, in its statement introducing the joint resolution, Egypt characterized both negative stereotyping and incitement as examples of the freedom of expression being “misused.” Hence, the resolution appears to have opened the door for further infiltration of the “defamation of religions” concept into both UN resolutions and national practice.

A related issue has arisen in connection with the European Union’s annual resolution in both the Human Rights Council and the General Assembly titled “Elimination of all forms of intolerance and of discrimination based on religion or belief.” This resolution traditionally has had two foci: ways to combat religious intolerance and admonitions to member states on the importance of protecting religious freedom.

Over the past two years, however, the European Union has proposed new language urging member states to ensure that “any advocacy of religious hatred That constitutes incitement to discrimination, hostility or violence is prohibited by law,” rather than merely verbally condemned. An express call for legal prohibitions is not only problematic for the United States due to its Article 20 reservation, but also could lend support to OIC countries’ efforts to reinterpret Article 20(2) to fulfill their goal of prohibiting “defamation of religions.” Fortunately, this language was not included in the final version of the resolution at the General Assembly in 2008.

The Longstanding Interpretation of the Incitement Provisions

ICCPR Article 20(2) does not create a right but rather limits rights, particularly the ICCPR Article 18 and 19 rights to free expression and to manifest freely one’s religion or belief. Article 20(2) therefore must be interpreted narrowly so as not to unduly restrict those rights.8 As a narrow exception to the ICCPR’s broad free speech and free exercise guarantees, Article 20(2) requires actions that amount to much more than the expression of critical or even insulting views on religious matters.

The idea behind the provision was to prevent incitement of the type used by the Nazis against Jews and members of other groups targeted during the Holocaust.

Accordingly, as the UN Special Rapporteur on the Freedom of Religion or Belief has recognized, Article 20(2) protects individuals, both believers and non-believers, from acts of violence or discrimination; it does not protect religious beliefs from criticism.9 Article 20(2) thus sets a high threshold under which expression should be prohibited only if it amounts to “incitement to imminent acts of violence or discrimination against a specific individual or group.”10 Indeed, as the Special Rapporteur has further noted, “any attempt to lower the threshold of Article 20 … would not only shrink the frontiers of free expression, but also limit freedom of religion or belief itself. Such an attempt could be counterproductive and may promote an atmosphere of religious intolerance.”11

The UN Special Rapporteur on the Freedom of Opinion and Expression also has stated that Article 20(2) is narrow and meant to protect individuals, not belief systems, and that freedom of expression applies “not only to comfortable, inoffensive or politically correct opinions, but also to ideas that ‘offend, shock and disturb.’”12

In addition, many international law specialists agree that, to avoid impinging too much on protected rights, Article 20(2) must be read to include an element of intent.13 For example, the Camden Principles on Freedom of Expression and Equality provide that the term “advocacy,” as used in Article 20(2), “is to be understood as requiring an intention to promote hatred publicly towards the target group.”14 Experts at a seminar on Articles 19 and 20 convened by the UN High Commissioner for Human Rights similarly identified a showing of intent among the objective criteria necessary to prevent the arbitrary application of international incitement norms.15 Likewise, in a joint statement delineating minimum standards for hate speech laws, the UN, OSCE, and OAS freedom of expression rapporteurs stated that “no one should be penalized for ‘hate speech’ unless it has been shown that they did so with the intention of inciting discrimination, hostility or violence.”16

Indeed, because it limits rather than creates rights, Article 20(2)’s very inclusion in the ICCPR, as well as its wording, was controversial and much-debated. During the many years of the treaty’s negotiation, language on advocacy of hatred was proposed, adopted, amended, removed and reinserted, several times over.17 The earliest proposal prohibited only incitement to violence. A number of delegations, including the United States, opposed further expansion. They feared that an expanded provision could too easily be abused to restrict expression and that the language proposed was too vague and difficult to define. Some delegations also argued that tolerance could not be legislated and was better achieved through other means, such as education.

Ultimately, Article 20(2) was adopted, but not unanimously. There were 50 votes in favor, 18 against, and 15 abstentions. (The United States voted against.) Many of the no votes and abstentions were because of the “incitement to hostility” language. As some delegations pointed out, the word “hostility” is so broad that the provision could be used to justify outlawing a mere difference of views. Even France, a longtime and strong supporter of the need for an incitement provision, abstained. The French representative explained that, because hatred necessarily results in hostility, it made no sense to define advocacy of hatred in terms of incitement to hostility.

ICERD Article 4 provoked similar controversy during the drafting of that treaty.18 Also a limited exception to the freedom of expression, Article 4 was intended to prevent “the revival of authoritarian ideologies” that disseminate ideas of racial superiority and incite racial violence.19 Thus, Article 4 also requires a high threshold for restricting speech. Unlike ICCPR Article 20, however, ICERD Article 4 does not mention religious hatred or discrimination. In fact, as the UN Committee on the Elimination of Racial Discrimination (the ICERD treaty body) has noted, that treaty’s drafting history shows that the General Assembly expressly “rejected the proposal to include racial discrimination and religious intolerance in a single instrument, and decided in the ICERD to focus exclusively on racial discrimination.”20

Race and religion both constitute impermissible bases for discrimination under international law and these bases may intersect in specific cases. However, conflating them to bring “defamation of religions” within ICERD Article 4’s ambit would raise serious religious freedom problems. A person’s race is immutable, but his or her religion is not. Indeed, the individual right to freedom of religion or belief includes the right to freely choose to change one’s religion, whether to another religion or no religion at all.21 In addition, as the UN Special Rapporteurs on Contemporary Forms of Racism, Freedom of Religion, and Freedom of Expression have recognized, while “any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust, and dangerous,” many religions “are characterized by truth claims—or even by superiority claims—which have been traditionally accepted as part of their theological grounds.”22 Deeming speech that is critical of or insulting to religions as equivalent to racist hate speech would suppress any discussion of truth claims about, among, or within religions—the peaceful sharing of which is an integral part of the freedom of religion or belief.

As predicted during the UN debates on both treaties, the international law incitement provisions have indeed proven difficult to implement. In fact, a 2006 study of international, regional, and national laws and practices by the UN High Commissioner for Human Rights concluded that the implementation of incitement norms, including ICCPR Article 20(2) and ICERD Article 4, has been “challenging,” in large part because of the “lack of clarity on key elements” such as the definitions of incitement, hostility, and hatred.23

Conclusion and Recommendations

National or international laws purporting to ban criticism or “defamation” of religions do not solve the very real problems of religious persecution and discrimination faced by the adherents of many religions around the world. In fact, such prohibitions do more harm than good, as evidenced by the documented human rights abuses perpetrated under them in countries such as Pakistan and Egypt. All UN members should oppose both the “defamation of religions” resolutions and efforts to reinterpret ICCPR Article 20(2) and ICERD Article 4 to encompass allegedly religiously defamatory speech. To that end, the U.S. government and other UN members who support universal human rights, including freedom of religion, should:

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SlantRight Editor: If you need the "End Notes" for resource verification, go the PDF document link above under the title or email me at john@slantright.com and I will send a copy.

For additional information on this issue, contact:
Elizabeth K. Cassidy
Deputy Director for Policy and Research
202-523-3240, ext. 126
ecassidy@uscirf.gov

U.S. Commission on International Religious Freedom
800 North Capitol Street, N.W., Suite 790
Washington, D.C. 20002
202-523-3240
202-523-5010 (fax)
www.uscirf.gov

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