In March 2008, the council further circumscribed protection for freedom of expression by adopting, with overwhelming support, an amendment introduced by Egypt (for the Group of African States), Pakistan (for the Organization of the Islamic Conference), and Palestine (for the Group of Arab States).67 This amendment changed the mandate of the Special Rapporteur on Freedom of Opinion and Expression to report on the “abuse” of the right of freedom of expression by an act of racial or religious discrimination.68 The U.S. ambassador stated that the revision “attempts to legitimize the criminalization of expression” and aims to place “restrictions on individuals rather than to emphasize the duty and responsibility of governments to guarantee, uphold, promote and protect human rights.”69 The Canadian delegate likewise argued that the resolution “turns the Special Rapporteur’s mandate on its head.”70 A few months later, Secretary of State Condoleezza Rice stated that the United States was “concerned by efforts to promote a so-called defamation of religions concept … this concept seeks to limit freedom of speech, and that could undermine the standards of international religious freedom.” Following Rice, the U.S. ambassador on international religious freedom, John Hanford, rejected the OIC approach to protecting religions for creating a “chilling effect upon the freedom of people to discuss their beliefs openly, to be critical openly.” Hanford also warned of “cases in certain countries where people have been sentenced for apostasy or blasphemy that drew upon this precedent from a resolution that passed at the UN.”71 The resolution also alarmed the World Association of Newspapers and World Editors Forum, which warned that the council’s “proper role is to defend freedom of expression and not to support the censorship of opinion at the request of autocracies.”72
In 2008, following further controversies over alleged insults to Islam, the office of the UN High Commissioner for Human Rights held an “Expert Seminar” on the links between articles 19 and 20 of the ICCPR.73 The result was an agreement that there were certain acceptable limitations on speech, but there was also disagreement on how extensive these limitations should be. Participants agreed that prohibitions were acceptable in genuine cases of “incitement to discrimination, hostility, or violence,” as provided for in Article 20 of the ICCPR. (This article had been formulated in the 1960s by the Soviet bloc and had been adopted without any Western support.) The president of the council suggested that common ground could be reached by shifting from “defamation of religions” to “incitement to religious hatred.”74 Even within the West, which opposed the “defamation of religions” concept, there was growing support for shifting the debate over banning religious insults to the framework of hate speech or “incitement.”75 Doudou Diène’s final report thus pronounced that “political and ideological polarization on the question of the defamation of religions is artificial. Indeed, analysis of international, regional, and national human rights instruments shows that provisions against inducement to national, racial or religious hatred are almost universal.”76 The OIC’s head sought to make “it clear that the OIC was not looking for limitation or restrictions of freedom of expression beyond those set by Articles 19 and 20 of the ICCPR.” To further emphasize that the “defamation resolutions” were not of an exceptional nature, the report stressed that “the EU has imposed stringent restrictions on hate speeches.”77
However, on December 10, 2008, four freedom of expression monitors—from the UN, Organization for Security and Co-operation in Europe (OSCE), Organization of American States (OAS), and African Commission on Human and Peoples’ Rights (ACHPR)—adopted an extraordinary joint declaration that emphasized the importance of “open debate about all ideas and social phenomenon in society and the right of all to be able to manifest their culture, religion and beliefs in practice” and lauded the abolition in many countries of laws “used to prevent legitimate criticism of powerful religious leaders and to suppress the views of religious minorities, dissenting believers and non-believers.…” They argued that, although prohibitions on “incitement to hatred, discrimination or violence” were acceptable, “open dialogue that exposes the harm prejudice causes” should be the primary means of combating bigotry. Their declaration pointed out that the “defamation of religions” framework was unacceptable because it “does not accord with international standards regarding defamation, which refer to the protection of reputation of individuals.”78
Nevertheless, in December 2008, the GA passed another resolution against “combating defamation of religions,” albeit with reduced support. In fact, 2008 marked the first year, in both the GA and the council, in which “no” votes and abstentions together outweighed the votes in favor.79 In the debate, speaking for the EU, France endorsed the approach of banning hate speech rather than defamation of religions, since “religious pluralism demanded the right of every individual to criticize, discuss and contest the values and convictions of others,” and the “defamation of religions” concept “was not compatible with a discussion on human rights” due to its focus on religions rather than on individuals. The U.S. representative took a stronger stand for free speech, stating that while he agreed with certain concerns voiced in the resolution, “freedom of expression meant freedom also to challenge the ideologies of hate through more speech, more information and more dialogue, not less.” He demanded an accounting from “those who misused United Nations resolutions to harass, torture or jail individuals for nothing more than the expression of their opinions or beliefs.” He also criticized the conflation of religion with race, which, by implying that “like an individual’s race, one’s religion was a characteristic that could not be changed,” contradicted the protections for freedom of religion in the UDHR: “Governments must respect the right of individuals to choose any particular religion or none at all, as well as to change religions and to manifest their religion in teaching, practice or observance.”
Even the observer of the Vatican, which had supported the OIC position during the Danish cartoons imbroglio, argued that while “in multicultural societies, appropriate measures must be taken to guarantee respect for different faiths,” the “defamation of religions” approach “risked moving the focus from the basic right of individuals and groups to the protection of institutions, symbols and ideas. Furthermore, it could lend itself locally to support for laws that penalized religious minorities and stifled legitimate dialogue among persons of different faiths and cultures.” In his view, the best means for preventing hate speech and “acts against (believers’) convictions” remained “insuring the right of individuals and communities to religious freedom,” as established in the UDHR and other international rights declarations.80
Unfazed by these critiques, Pakistan and the OIC made certain that “defamation of religions” was again adopted as a resolution of the Human Rights Council in 2009 and 2010, though losing votes each year.81 The OIC delegate widened his concern from allegedly Islamophobic politicians to “blasphemous” Islam-related art collections, several of which, including those by artists of Muslim background, had been exhibited in Europe and had provoked violent threats.82 In 2011, however, taking note of rapidly dwindling support for the resolution, Pakistan and the OIC lacked the confidence to introduce it at the sixteenth session of the council, whose session took place around the time that two prominent Pakistani political figures were assassinated for opposing Pakistan’s national blasphemy laws. This was a small but essential victory in the defense of individual rights to freedom of expression and of religion.
International Treaties: The Exception Becomes the Rule
International human rights treaties, which have been the foundation for global human rights for nearly half a century, are turning out to be weak bulwarks against a concerted OIC push for restrictions on negative commentary on Islam. Proclaimed for their universality, these treaties have served as the legal basis for individual freedoms since they originated but are now being twisted into a justification for suppression of such freedoms as the consensus behind them changes. The UN’s Internatio
nal Covenant on Civil and Political Rights (ICCPR, effective 1976) is the main treaty protecting an individual’s rights to freedoms of religion and of expression. It also sets forth vaguely worded exceptions to free expression that are now being interpreted expansively, even by much of the West, to erode the ICCPR’s core freedoms of both religion and expression.
The ICCPR’s Article 18 establishes one’s “freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” This right was intended to protect individuals in the exercise of a religion of their choosing, not to protect religions or individuals from religious insult or criticism. However, new interpretations threaten to limit a person’s right to dissent from specific religious teachings and practices. As discussed in chapter 12, European states, as well as OIC-member states, now argue that religious freedom includes the right of religious groups and individuals not to have their feelings injured and that this new right can conflict with, and take precedent over, the right to free expression.
The ICCPR’s Article 19 protects the right to freedom of expression, which includes “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” It also sets forth certain “necessary” restrictions—to protect “the rights or reputations of others,” “national security” or public order, and health or morals (Paragraph 3). British courts have begun to prosecute religious hate-speech cases under “public order” laws. Article 20 (included by the then-Soviet bloc states over strong Western opposition) explicitly obliges states to prohibit “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”83 This provision is the one used in the West to apply religious hate-speech laws and limit the rights found in articles 18 and 19. Article 4 of the CERD (effective 1969) makes a more sweeping demand that states institute legal penalties for “all dissemination of ideas based on racial superiority or hatred,” in addition to various forms of racial or ethnic incitement.84 The OIC and some Western courts have declared anti-Islamic expression a form of racism.
The United States and some other states believe these restrictions are threatening free speech, prompting them, in ratifying the two instruments, to make reservations or interpretative declarations on behalf of free speech.85 Nevertheless, several of these same countries are yielding under OIC pressure to silence criticism of Islam.
The United States Joins Consensus on a UN Hate-Speech Resolution
In May 2009, the United States campaigned for, and was elected to, a seat on the UN’s Human Rights Council.86 Whereas the Bush administration had declined to participate in the council because, like its predecessor, the Commission on Human Rights, its lack of membership criteria opened membership to some of the world’s worst human rights violators, allowing them to distort its work, the Obama administration argued that reform could be better achieved from within the body. The United States was soon put to the test on the issue of religious hate speech.
In its first council session, on October 2, 2009, in what American diplomats said was an effort to “reach out to Muslim countries,” the United States, with Egypt, introduced a hate-speech resolution under the freedom of expression agenda item. Adopted by consensus, the resolution expresses concern about “negative racial and religious stereotyping” and, while not binding, “urges States to take effective measures to combat … any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” The incitement standard articulated here by America is very different from the narrow one allowed under the U.S. Constitution.87 It was said to be an attempt to steer the OIC away from efforts to make religious speech bans binding by means of bans on “defamation of religions,” or through amendments to the racial discrimination treaty, but no mention was made in the resolution of the European distinction between protecting individuals and protecting religions per se. Moreover, it appeared to suggest that the U.S. administration saw a need to roll back First Amendment freedoms.
In the speeches surrounding the joint resolution’s adoption, Pakistan seized on the term “negative stereotyping” and equated it with “defamation of religion”: “The OIC strongly believes that negative stereotyping or defamation of religions is a contemporary manifestation of religious hatred, discrimination, and xenophobia.… We further hope that today’s consensus outcome will lead to better understanding of our concerns regarding defamation of religion, as well as to adopt the corresponding resolution by consensus in the future.” Though the U.S. Supreme Court has decided that the U.S. Constitution allows only the criminalization of speech that incites to violence and lawless action that is imminent and likely, through this resolution, the United States gave encouragement to the worldwide criminalization of hate speech far more broadly, including when that speech incited to violence that was not “imminent” or “likely and to “hostility,” a term that lacks a recognized legal definition.88 The resolution proved controversial among human rights advocates, so much so that Secretary of State Hillary Clinton felt compelled to use the release of the State Department’s annual religious freedom report later that month to reassert America’s commitment to free speech. Her statement seemed to be a strong defense of free speech and outlined steps that could serve as a useful blueprint:
Now, some claim that the best way to protect the freedom of religion is to implement so-called anti-defamation policies that would restrict freedom of expression and the freedom of religion. I strongly disagree. The United States will always seek to counter negative stereotypes of individuals based on their religion and will stand against discrimination and persecution. But an individual’s ability to practice his or her religion has no bearing on others’ freedom of speech. The protection of speech about religion is particularly important since persons of different faiths will inevitably hold divergent views on religious questions. These differences should be met with tolerance, not with the suppression of discourse. Based on our own experience, we are convinced that the best antidote to intolerance is not the defamation of religion’s [sic] approach of banning and punishing offensive speech, but rather, a combination of robust legal protections against discrimination and hate crimes, proactive government outreach to minority religious groups, and the vigorous defense of both freedom of religion and expression.89
However, her reference to “hate crimes,” which omitted any explanation that in the United States these are traditional crimes with enhanced penalties and not stand-alone religious hate-speech crimes, was unfortunate. It lent itself to likely misinterpretation and confusion, particularly on the part of international audiences. The confusion was deepened by the remarks of the U.S. Assistant Secretary for Democracy, Labor and Human Rights, Michael Posner, who immediately followed her to the podium. His statement was ambiguous and could be understood as further asserting a new U.S. hate-speech policy based on the European dichotomy of embracing religious hate-speech bans to protect people’s religious feelings, while rejecting blasphemy bans that protect religious doctrines.90
The U.S. State Department Legal Adviser, Harold Koh—who had written approvingly of “transnational jurisprudence,” that is, integrating the United States into the international legal system and having American courts use international rules and decisions in their own decision-making—explicitly praised the U.S.-Egypt hate-speech resolution as among the administration’s “important successes.”91
“Durban II”
The conceptual shift from defamation to incitement was also manifested in the April 2009 Durban Review Conference against racism, popularly known as “Durban II.” From the preparatory stages, OIC-member states had worked diligently to make “Islamophobia” and “defamation of religions” major topics, with Iran serving as a vice-chair
person and an informal “Friend of the Chair” of the Preparatory Committee.92 A submission by the Asian group of states asked that governments “prohibit the transmission of racist and xenophobic messages” on the Internet and elsewhere. It called for a media code of conduct and instructed states “to take firm action against negative stereotyping of religions and defamation of religious personalities, holy books, scriptures and symbols.” It also suggested that the review conference take note of Special Rapporteur Diène’s recommendations on “defamation of religions” when issuing guidelines for states.93 The OIC produced similar recommendations, and these themes were prominent in subsequent meetings and documents.94 There was also at least one Durban-related attempt to make the “defamation” prohibition binding through the further conflation of racial and religious matters. In December 2008, an Algerian-led preparatory subcommittee proposed a revision of the CERD to include a “defamation of religions” ban. This, however, failed to pass.95
The United States, which had walked out of the first Durban conference along with Israel, sent a delegation to preliminary talks in February 2009 in hopes of arriving at a more acceptable program. However, by February 27, the United States announced that it would not participate in the conference unless there were major changes to the text, including dropping “the troubling concept of ‘defamation of religion.’” The United States, Canada, Israel, and other Western countries withdrew, several withdrawing after an incendiary anti-Israel, anti-Semitic, and anti-Western diatribe on April 20 by Iran’s President Ahmadinejad.96
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