On the OIC’s behalf, in 1999, Pakistan introduced an antidefamation resolution for the first time, with Islam the only religion mentioned in the text.27 Its delegate emphasized that “[t]here was a tendency … in the international media to portray Islam as a religion hostile to human rights, threatening to the Western world and associated with terrorism and violence, whereas, with the Quran, Islam had given the world its first human rights charter.… That defamation campaign was reflected in growing intolerance towards Muslims.”28 In 2000, the commission adopted a new compromise, “Combating defamation of religions,” which focused on discrimination based on religion rather than issues of religious freedom per se.29 India and the EU regretted the resolution’s focus on a single religion and complained that its inclusion on the agenda distracted the commission from “promoting freedom of all religions and beliefs.” Nonetheless, based on an informal “understanding” that the matter would not be raised again in the commission, they allowed its adoption without a vote.30
That understanding was proved false the following year, which motivated the West, for the first time, to actively oppose a “defamation” resolution. In introducing this resolution for the OIC, Pakistan asserted that Islamophobia was an emerging “form of contemporary racism,” while the text itself singled out “defamation,” rather than intolerance or discrimination, and asserted that “defamation of religions is among the causes of social disharmony and leads to violations of the human rights of their adherents.” Though not binding, the resolution called for states “to provide adequate protection against all human rights violations resulting from defamation of religions.”31
In a response that presciently diagnosed problems to come, the Belgian delegate explained that the EU had concerns about the text’s emphasis on “the protection of religions rather than the human rights of individuals” and its tendency to “stress one religion above all others [emphasis added].” Belgium added that the sponsors had “invoked the General Assembly initiative on the elimination of crimes against women committed in the name of honor” as an instance of a recent increase of defamation of religions and that the “EU does not accept such a connection.” The EU also protested that the draft resolution “seems to indicate that individual dissent from majority opinions and practices should not be tolerated in the interest of social harmony. The concept of defamation can easily be abused by extremists to censor all legitimate, critical debate within religions.… Freedom of expression and freedom of religion are fundamental components in promoting tolerance in societies.”32
Nonetheless, the resolution passed on April 18, 2001, by a vote of twenty-eight to fifteen, with nine abstentions. The commission’s Western members voted in opposition.33 Thus, in the 2001 resolution, the principle of banning “defamation of religions” was established in the UN. In the aftermath of the attacks on the United States on September 11 of that year, the campaign on behalf of these resolutions acquired an additional focus. Already, by November 2001, Abdullah Al-Turki, Secretary-General of the Saudi-based Muslim World League, accused Western media of conducting a campaign of defamation against Islam and demanded that the UN prohibit defamation of religions, especially of Islam. The resolution the following year passed with virtually the same support as the 2001 resolution.34
Doudou Diène: UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance
The 1999–2002 debates and resolutions show a consistent pattern. OIC-member states introduced draft resolutions citing concerns about what they termed defamation of religion, particularly of Islam. Other states, usually EU members, countered that the resolutions sought to give rights to religions as such, threatened freedoms of speech and of religion, and gave preeminence to one religion. In the first two years, the resolutions, though watered down by compromises, nonetheless passed by consensus, giving OIC states what they wanted. This also consumed valuable commission time and took attention away from the body’s traditional concerns. Meanwhile, the commission’s special reporting on Islamist states, such as Iran and Sudan, was dropped.
The OIC then expanded its strategy by involving the Special Rapporteur on Racism, Racial Discrimination, Xenophobia, and Related Intolerance. Seizing the new mandate that the OIC had advanced that allowed him to investigate alleged attacks on Islam, Special Rapporteur Doudou Diène, a jurist from Senegal, began issuing reports striking for their absence of evidence and their tendency to conflate all expressions of concern over Islamic extremism with “racist” assaults against Muslims. He published reports covering Islamophobia over the five years following his appointment until he left the post in 2008. Diène warned of “the equation of Islam with violence, terrorism and cultural and social backwardness by intellectual, political and media figures”; of “intellectual legitimization of overt hostility towards Islam and its followers by influential figures in the world of arts, literature and the media; of tolerance of such hostility in many countries”; and of a growing “logic of suspicion with regard to Islam.”35
In general, he asserted that Islamophobia “has become the substitute ideology for a number of Cold War theoreticians.”36 He repeatedly inveighed against Harvard political scientist Samuel Huntington for his book The Clash of Civilizations and the Remaking of the World Order, a book that in fact shared Diène’s concerns but which he mischaracterized, first as depicting “a confrontation between two culturally antagonistic blocks, the West and the Arab-Muslim world,” and later as “an attempt to construct a theoretical and ideological justification for Islamophobia.”37 Despite his alleged disdain for Huntington’s views, Diène himself put forward his own sweeping vision of a brewing “conflict between civilizations,” featuring generalizations that far transcended any of the late Samuel Huntington’s more cautious formulations.38 Notwithstanding his professed concern over negative stereotypes of Islam, Diène threw about stereotypes and one-sided accounts of European culture, citing the Crusades and the “re-conquest of [Al-Andalus]” in the fifteenth century.39
The Danish cartoon controversy allowed Diène to expand his thesis of an Islamophobia-driven clash of civilizations, with the defense of free expression being characterized as a weapon in the West’s Islamophobic arsenal. He redefined “freedom of religion” to mean the right of a religion to freedom from criticism, astonishingly contending that the defense of free expression is itself an aggressive act.40 He accused “governments, political leaders, intellectual personalities and the media” of having “radically set freedom of expression and freedom of religion against each other.” Diène was apparently blithely unaware that that was exactly what he was doing. He did so when he cast religious freedom as a matter of protecting religions from hostile words rather than safeguarding the individual’s freedom of conscience.41
Meanwhile, in those reports with a broader focus, Diène’s treatment of “defamation” against other religions differed starkly from his statements on Islamophobia.42 He depicted anti-Semitism and “Christianophobia” primarily in terms of reactions to Israel and the policies of Western states.43 He was perfunctory in reporting on persecution of Christian minorities in Saudi Arabia and Pakistan.44
Asma Jahangir, Special Rapporteur on Freedom of Religion or Belief
One report, commissioned by the newly constituted Human Rights Council in the wake of the Danish cartoons affair, was exceptional. In 2006, the council sought a joint report from Doudou Diène and Asma Jahangir, who had been, since 2004, the UN Special Rapporteur on Freedom of Religion or Belief. Since Jahangir, a woman advocating human rights from Pakistan, had fought courageously for human rights, including religious freedom, the report they produced was, predictably, schizophrenic.
In the first section, Diène once again suggested that inflammatory Western rhetoric was the main obstacle to cultural harmony and that international legal limitations on criticizing Islam were the answer. In the second section, however, Jahangir offered a trenchant analysis of the deleterious effects of attempts t
o suppress criticism of religious views. Her section of the report provides one of the best contemporary analyses of the dangers involved in the concept of “defamation of religion.” Accepting the legitimacy of bans on speech only in order to prevent direct incitement to violence or discrimination, she rejected the notion of a conflict between freedom of expression and freedom of religion or a new right to be protected from offense. She noted the oppressive potential inherent in blasphemy laws and emphasized the protection of individual rights.
Jahangir rejected the view that religions, as such, should be protected, since there are divisions both within and among religions. As a Pakistani Muslim human rights activist herself, and one who had suffered from religiously based attacks, she honed in on this essential point: “[I]ndividuals who belong to a majority religion are not always free from being pressured to adhere to a certain interpretation of that religion [and] should therefore not be viewed as parts of homogenous entities. For that reason, inter alia, international human rights law protects primarily individuals in the exercise of their freedom of religion and not religions per se.”45 In this context, she considered provisions from Article 18 of the International Covenant on Civil and Political Rights (ICCPR), which reads: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Critically, Jahangir concluded that the right to freedom of religion “does not include the right to have a religion or belief that is free from criticism or ridicule” and that religious rules are not always generally applicable. She agreed that freedom of expression can be legitimately curtailed to suppress “advocacy that incites to acts of violence or discrimination against individuals on the basis of their religion,” but she argued that defamation of religions per se “does not necessarily or at least directly result in a violation of their rights.”46
While Article 20 of the ICCPR prohibits advocacy of national, racial, or religious hatred, Jahangir argued that this provision should only be applied to quash “incitement to imminent acts of violence or discrimination against a specific individual or group.” And, while Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) prohibits “dissemination of ideas based on racial superiority or hatred” and “incitement to racial discrimination,” Jahangir contended that “the elements that constitute a racist statement are not the same as those that constitute a statement defaming a religion,” so similar legal measures would not necessarily be appropriate. She concluded with the warning that “[a]t the global level, any attempt to lower the threshold of Article 20 of the Covenant would not only shrink the frontiers of free expression, but also limit freedom of religion or belief itself.” Most surprisingly, given Diène’s involvement, the report concluded that “[t]he situation will not be remedied by preventing ideas about religions from being expressed.”47
The UN, Post-2003
Neither Diène nor the OIC, however, was prepared to accept this conclusion. From 2003 onward, now often citing Diène’s reports, OIC countries made more pointed attacks on freedom of expression in the Commission on Human Rights. Then, in 2004, the UN General Assembly (GA) took up the question of Islamophobia and, in the following year, for the first time in the GA, Yemen for the OIC introduced a text almost identical to those in the commission.48 Despite opposition from the United States, the EU, and India, the resolution was adopted 101–53–20 (i.e., twenty abstentions).49
The 2005 resolution began to link “defamation of religions” to antiterror efforts, maintaining that, “in the context of the fight against terrorism and the reaction to counter-terrorism measures,” defamation of religions is “an aggravating factor that contributes to the denial of fundamental rights and freedoms of target groups.”50 After the Danish cartoons controversy amplified the OIC’s and others’ allegations of defaming Islam, the campaign gained momentum. In December 2005, the UN High Commissioner for Human Rights, Louise Arbour, wrote to the UN deploring “any statement or act showing a lack of respect towards other people’s religions.”51 The grand sheikh of Egypt’s Al-Azhar University, and the OIC, at its 2005 “Extraordinary Summit” in Mecca, both decided “to have the United Nations counter Islamophobia.”52 In 2006, they were joined in this effort by Arab League leaders, and the Muslim Brotherhood’s Yusuf al-Qaradawi urged “a binding resolution banning contempt of religious beliefs.”53
By 2006, the United States began offering a more comprehensive critique, saying that the resolution “did not take into consideration basic rights which were held dear by many, including the freedom to express negative opinions about a specific religion or all religions in general.” The EU rejected the validity of “defamation of religions,” emphasizing the need to protect individuals rather than religions themselves: “Members of religions or communities of belief should not be viewed as mere particles of homogeneous and monolithic entities.”54 Meanwhile, the EU worked for a compromise text aimed at “incitement to religious hatred” rather than defamation.55
The Human Rights Council that replaced the discredited Commission on Human Rights in 2006 continued its predecessor’s practices. Western opposition drew off support for the resolution year by year so that, by 2010, one passed with only a three-vote margin; and, in 2011, with memories still fresh of the assassinations of Pakistan minister Shahbaz Bhatti and governor Salman Taseer, the OIC, fearing defeat, did not introduce a defamation of religions resolution. It had been Pakistan, representing the OIC, that had introduced the antidefamation resolution adopted by the Human Rights Council at its very first session in June 2006.
In 2006, the council resolution had expressed “deep concern over the increasing trend of defamation of religions, incitement to religious hatred and its recent manifestations” and mandated the High Commissioner for Human Rights to investigate these issues, in addition to commissioning a report.56
By 2007, the council was back to adopting a resolution expressly entitled “Combating Defamation of Religions,” cosponsored by Pakistan for the OIC and by Venezuela.57 As usual, it mentioned specifically only the situation of Islam and Muslims and once again took note of the 2005 Mecca summit.58 The resolution drew strong protests from Western NGOs, including the Jubilee Campaign, the Becket Fund, Amnesty International, Human Rights Watch, and Freedom House.59 That year, UN Secretary-General Ban Ki-Moon himself appeared to endorse criminalizing “defamation of religions” by declaring in one UN report, “A trend is emerging towards amending criminal codes to reflect the existence of the different phenomena constituting defamation of religions. The persistence of these phenomena, however, proves that further efforts need to be made.”60 Meanwhile, OIC delegates were increasingly vocal in deploring the menace of unrestricted free speech. During a 2007 Council on Human Rights discussion, the Egyptian representative, Ihab Gamaleldin, asserted that “the offensive publication of portraits of Prophet Muhammad … has highlighted the damage that freedom of speech if left unchecked may lead to. Not only by hurting the religious feelings of more than a billion people, but also to their freedom of religion and their right of respect for their religion.”61 Delegate Marghoob Saleem Butt of Pakistan remarked, “Unrestricted and disrespectful freedom of opinion creates hatred and is contrary to the spirit of peaceful dialogue and promotion of multiculturalism.”62
The OIC members abstained from a council resolution on religious freedom, particularly distressed that it guaranteed the right to convert and that it made no mention of protecting religions from “defamation.” The Saudi delegation said it could not “accept texts which go against the Islamic sharia.”63 The OIC, however, has not succeeded in gaining EU or U.S. approval of the “defamation of religions” concept. Without such Western support, passing a binding UN resolution remains elusive. However, OIC states have managed to obtain GA resolutions against “defamation of religions”
in every session since the 2005 Mecca summit, and even nonbinding UN resolutions have the potential to be cited by international and national courts and over time enter into international law as “customary” laws.64 The OIC’s decision not to introduce a resolution against defamation of religions in the council’s sixteenth session in 2011 was seen by the UN’s Western bloc as an essential battle won in the struggle to preserve the principle of fundamental freedoms of the individual.
2008 and Beyond
Though defamation of religions resolutions would continue to be adopted in the UN’s foremost human rights body until 2011, albeit with decreasing support, by 2008, the center of gravity in the UN had shifted to favor a religious hate-speech focus. Europe saw resolutions against hate speech as putting the emphasis properly on individuals rather than on religions. The OIC, however, viewed them as a convenient pretext to declare allegedly Islamic institutions off-limits for criticism and thus as a proxy for resolutions against religious defamation.
A new paragraph in the Human Rights Council’s 2008 resolution contained the Orwellian assertion that protecting religions from “contempt” was “an essential element conducive for the exercise by all of the right to freedom of thought, conscience and religion.” The 2008 text also relied on the conflation of racial and religious issues. It argued that a ruling by the Committee on the Elimination of Racial Discrimination permitting bans against “the dissemination of all ideas based upon racial superiority or hatred” should be equally applicable to speech inciting religious hatred. It gave a new mandate to the High Commissioner for Human Rights to seek out best practices among blasphemy laws, which resulted in a finding that, in fact, there is no common practice.65 This was the first such resolution to pass by a plurality rather than a majority.66
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