Ultimately, the final Durban II document made no specific reference to “defamation of religions” but called for restrictions on speech more along the lines of existing national and international bans on incitement to religious hatred. It “deplore[d] the global rise and number of incidents of racial or religious intolerance and violence, including Islamophobia, anti-Semitism, Christianophobia and anti-Arabism, manifested particularly by the derogatory stereotyping and stigmatization of persons based on their religion or belief” (the mention of “persons” seems a clear concession to the EU’s insistence that any restrictions on speech protect people rather than beliefs). It called for the legal prohibition of “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”97
As a side event at the Durban conference, the Special Rapporteurs on Freedom of Religion (Asma Jahangir), Freedom of Expression (Frank LaRue), and Racism (Githu Muigai, who had replaced Diène) issued a joint statement that reiterated many of the most important criticisms of the “defamation of religions concept.” Notably, the rapporteurs rejected the false opposition between freedom of expression and freedom of religion to assert that freedom of expression was instead “an essential aspect of the right to freedom of religion or belief” and thus merited legal protection. They continued: “While the exercise of freedom of expression could, in some extreme cases, affect the right to manifest the religion or belief of certain identified individuals, it is conceptually inaccurate to present ‘defamation of religions’ in abstracto as a conflict between the right to freedom of religion or belief and the right to freedom of opinion or expression.” In addition, the rapporteurs pointed out that any analogy between racism and “defamation of religions” was flawed, since, while racial superiority claims were both reprehensible and wrong, “several religions are characterized by truth claims—or even by superiority claims—which have been traditionally accepted as part of their theological grounds.”
Given these issues, the three experts lauded “the fact that the debate seems to be shifting to the concept of ‘incitement to racial or religious hatred,’ sometimes also referred to as ‘hate speech,’” and issued a call to “anchor the debate on these issues in the relevant existing international legal framework, provided for by the ICCPR.” Within this framework, the threshold of Article 20, which prohibits the advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence, “remained to be determined.”98 The experts concluded, “The strategic response to hate speech is more speech: more speech that educates about cultural differences; more speech that promotes diversity; more speech to empower and give voice to minorities, for example through the support of community media and their representation in mainstream media. More speech can be the best strategy to reach out to individuals’ hearts and minds, changing what they think and not merely what they do.”99
Nevertheless, the OIC, with support from the African states, continued, in the March 2010 Human Rights Council, to aim for a binding agreement to ban anti-Islamic speech through amending the CERD and through the resolution on the “defamation against religions,” as well as through religious hate-speech restrictions already provided for in the ICCPR.100 As previously noted, it dropped its push for a council resolution against “defamation of religions” in the sixteenth session of the council in 2011; it remains to be seen whether it will attempt to advance the resolution at a subsequent meeting.
Closing
Prohibitions on “defamation of religions” reflect the view that, in the realm of belief, government should serve as the arbiter and regulator of ideological orthodoxy rather than as the defender of individual freedom; this is the same principle operative behind many OIC states’ own domestic laws against blasphemy and apostasy. The UN’s “defamation of religions” resolutions seek to legitimize this idea by suggesting that speech criticizing religious beliefs is a human rights violation rather than the exercise of a protected human right. In reality, banning “defamation of religion”—effectively meaning Islam—contradicts existing precepts of human rights law.
Such a ban would serve to punish individuals who voice controversial opinions rather than those who employ violence to silence them. It would empower “the dubious claim that speech has violated religious freedom, not because it has incited violence towards a targeted group, but because violence has resulted from the targeted group.”101 These resolutions would also change the meaning of “defamation”—which, historically, has meant injuring a person’s reputation through false statements—to any putatively negative portrayal of a religion or something or someone claiming to represent that religion.102
Resolutions banning “defamation of religions” stand little chance of being directly incorporated into international law, particularly so since the OIC dropped its campaign for them in the council in 2011. The effort to advance the concept, however, is far from dead. Blasphemy prohibitions are now being universalized at the UN through a back door. Traditionally narrow limits on free expression are being interpreted expansively to accommodate prohibitions against “religious hate speech,” which, in turn, is explicitly interpreted by the OIC as a ban on “defamation of religions.” This new twist on the meaning of fundamental rights would erode not only freedom of expression, but also that other “first freedom” with which it is inextricably linked: freedom of religion. Government efforts to side with religious authorities to coerce religious dissenters and minorities have long been understood not as a component but as a negation of the right to religious freedom. Religious freedom is guaranteed precisely to ensure that individuals can have religious disagreements without fear of temporal punishment. Outlawing speech that rejects or criticizes religion undercuts religious freedom itself.
The rapporteurs’ May 2009 statement noted that, while cases of incitement to violence or genocide could often be relatively easy to identify—they offered the horrific example of the Hutu radio station that called for its listeners to kill Tutsis during the Rwandan genocide—they acknowledged that “incitement to hostility” (which is explicitly included as religious hate speech in a UN treaty) carries an inherent “risk of subjectivity.”103 The lines between legally protected criticism of ideas and unprotected incitement against a group are frequently muddled.104 Furthermore, conflicting theologies render it impossible for governments to protect equally all religions or religious people from being offended by blasphemy. Prohibitions on blasphemy would tend to benefit the majority or the powerful.
Moreover, as our country chapters show, where religion and power are intertwined, states invariably draw on laws restricting speech critical of religion for other than purely religious purposes. Many OIC members silence their domestic opponents and critics through a wide variety of repressive measures, but one prominent tactic is to accuse such critics of “insulting Islam” or insulting the “Islamic regime.” These accusations enable both the crushing of political dissent and the silencing of Muslims who question the official and dominant versions of Islam, including those who advocate versions of Islam that promote human freedom.
Operating within the UN is a concerted, twenty-year campaign to suppress human rights critique of authoritarian regimes that claim to represent and embody Islam and, under their logic, are thereby shielded from any critique under rules forbidding insult to Islam. International laws against apostasy and blasphemy, whether called defamation or hate speech, would legitimate this campaign, thus placing up to one-quarter of UN-member states beyond criticism. Furthermore, such laws could be interpreted not only as an endorsement of authoritarian regimes but also as a requirement of all UN-member states to repress anyone, anywhere in the world, whom those regimes accuse of blasphemy against Islam. International rights to freedoms of expression and religion for the individual would be undermined.
12
Religiously Incorrect
Islam, Blasphemy, and Hate Speech in Western Domestic Law
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bsp; In 2007, popular Canadian writer Mark Steyn and Maclean’s, English Canada’s leading newsmagazine, were brought before three of Canada’s human rights commissions by the same complainant, over the same article, one that excerpted from Steyn’s best-selling book America Alone. They were accused of publishing material “likely to expose a person or persons to hatred or contempt.”
In November 2007, the Canadian Islamic Congress (CIC) filed the three human rights complaints against Maclean’s and Steyn for Steyn’s piece “The Future Belongs to Islam.”1 According to the CIC, the article was harmful to Muslims’ “sense of dignity and self-worth.”2 A CIC report on Maclean’s, which contended the magazine was habitually “Islamophobic,” also denounced Maclean’s for “attacking multiculturalism and religious freedoms” and “attacking laws that provide protection to identifiable communities from the type of discriminatory journalism that Maclean’s is engaging in.” Steyn also came under attack for “the misrepresentation of legal action taken by Muslims against the authors of discriminatory publications as ganging up by Muslims in order to persecute writers and launch lawsuits on frivolous grounds”—in other words, he was attacked for criticizing the very statutes under which he and others might be penalized and for criticizing those who sought to penalize him.
The CIC filed complaints with the federal commission and with two provincial human rights tribunals—in Ontario and British Columbia. In the name of CIC leader Mohamed Elmasry, the complaints linked Steyn’s purported offenses against Muslims to his denunciations of Canada’s culture of political correctness. Elmasry alleged, among other things, that Steyn’s article asserted that a “substantial number” of Western Muslims desire the imposition of “an oppressive branch of Shariah law” and would be willing to engage in terrorism; that Muslim immigrants to Europe bring with them radical ideas from places such as Nigeria and South Asia; that “a policy of multiculturalism is incapable of making Muslims in the West loyal to their countries of citizenship;” that “social democratic states are susceptible to being taken over by Muslims as a result of their social democratic policies;” and that, “in a few years, European (sic) will be ‘semi-Islamified,’ meaning that parts of it will be living under Shariah law or will have been taken over by Muslims.”
None of the complaints succeeded. One of the judges, however, while saying that the tribunal did not have jurisdiction in the case, gratuitously pronounced the defendants “Islamophobic” anyhow, but adding, “fear is not synonymous with hatred and contempt.”3 The complaints against Steyn were also financially costly. Under Canadian law, complainants’ legal fees are provided by the state while defendants’ are not, even if the complaint fails.
A case in Finland raises the specter of anti-Islamic blasphemy charges being used by a Western government for political purposes against its opposition, without the involvement of any Muslim complainants or even commentators. In September 2009, a popular Helsinki City Council member was convicted of the offense of “defaming religions” for negative statements on his blog about Islam’s prophet. The offender, twenty-eight-year-old Jussi Halla-aho, wrote a blog on anti-immigration and pro-free speech themes in which the state prosecutor, Mika Illman—a prominent supporter of hate-speech laws—was frequently criticized. Soon after Hallaaho’s election to the city council, the government launched an investigation into one of his blog postings from two years earlier, in which he had expressed views about the deportation of immigrants convicted of rape.
Finding no evidence of a hate-speech crime, the police dropped the case. The government then ordered the police to review everything Halla-aho had written.4 After trawling through his extensive blog site, the government charged the councilman for an entry concerning the free speech debate about what can be said about Islam. Halla-aho argued that it should not be illegal to call the prophet Muhammad a pedophile or Islam a religion that sanctifies pedophilia, since both claims could be shown to be true. This particular posting had appeared under the heading “Bait” for Mika Illman on the blogsite.
The court declared Halla-aho’s reasoning inadmissible because “[l]ogic and so-called arguments of reason have no true significance in debating religious questions.” Halla-aho was found guilty of defaming Islam and fined after the court ruled that he had not intended to engage in a sincere discussion of Islamic beliefs and that his statements would foster religious intolerance.5 Members of the Green Party, which had previously advocated for the repeal of Finland’s blasphemy law, applauded the conviction.
In December 2004, pastor Daniel Scot and pastor Daniel Nalliah of the Australian Pentecostal group Catch the Fire Ministries (CTFM), ran afoul of Victoria state’s Racial and Religious Tolerance Act of 2001, which outlaws “conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons” based on religious belief or activity.6 The pastors were charged with criticizing Islam in connection with a public seminar on ministry to Muslims at which Scot spoke and for material on the Web and in a CTFM newsletter. Three converts to Islam had infiltrated the seminar for the Islamic Council of Victoria and had taken offense at what they heard. The council filed charges, accusing CTFM of inciting hatred against Muslims.7
The pastor’s alleged offenses ranged from direct criticism of Qur’anic teachings to warnings about Muslim immigrants. Among them were criticisms “that the Qur’an promotes violence, killing and looting”; that it promotes abuse of women and domestic violence; “that Allah is not merciful and a thief’s hand is cut off for stealing”; that terrorists are true Muslims based on the Qur’an; that Muslims are religiously obligated to fight Christians and Jews; and “that Muslims have a plan to overrun western democracy by the use of violence and terror, and to replace those democracies with oppressive regimes.”
Judge Michael Higgins of the Victorian Civil and Administrative Tribunal held Scot liable because his remarks were “essentially hostile, demeaning and derogatory of all Muslim people, their God, Allah, the prophet Mohammed and, in general, Muslim religious beliefs and practices.” The court reasoned that Scot’s lecture gave an “unbalanced” view of Islamic theology; in fact, the judge, who showed no sign of expertise in the subject, ventured deep into theological territory.8 Scot was found at fault for interpreting the Qur’an in accordance with “Wahhabists,” which the judge opined “bear no relationship to mainstream Muslim beliefs and, in particular, Australian Muslims.” He also stated that Scot’s “credibility” was in doubt, in part because, during his defense, he had cited two Qur’anic verses that produced an unfavorable impression of Islam without citing a third that the Judge strangely described as “a pro-Islamic verse.”9
Nalliah was found to have incited hatred of Muslims through a mix of political and theological assertions. In a newsletter article entitled “2002—Will Australia Be a Christian Country?” he had questioned why, in his view, Muslim immigrants receive visas to Australia more readily than Christian refugees. He also said that Christians are frequently killed in Muslim-majority countries, suggesting that Australian Christians could be killed and that other dangers could ensue from alleged Islamic infiltration of the West. In addition, Nalliah had posted on CTFM’s Web site a third party’s article that called Islam inherently violent, claimed that the Qur’an teaches hate, and “suggests that the prophet is a pedophile.” This article was judged to have made “no attempt … to distinguish between moderate and extremist Muslims.”10
The pastors were found in violation of the law and ordered by the tribunal to publish, under their names, a prepared statement that would have barred them for life from repeating their statements about Islam—and, in effect, from teaching what they believed as Christians. The pastors appealed and also lodged a complaint against Judge Higgins on the grounds that during the case he had himself “ridiculed” Scot’s own religious beliefs. The Supreme Court of Victoria ordered a retrial on the basis that the lower court had paid insufficient attention to “the distinction between hatred of the r
eligious beliefs of Muslims and hatred of Muslims because of their religious beliefs.”
In June 2007, the Islamic Council dropped its suit.11 Despite this favorable outcome, Pastor Scot noted that his defense had cost him “hundreds of thousands of dollars in legal fees.” Not only had the ordeal lasted nearly three years, but it damaged his reputation, costing him speaking engagements. Anti-vilification laws, he argued, amounted to “blasphemy laws in disguise.”12
Introductory Remarks
Despite clear Western opposition to the efforts of the Organization of the Islamic Conference (OIC) to legislate an international prohibition on “defamation of religions,” the Western world equivocates between upholding the right to freedom of expression and calling for its curtailment in the name of religious sensitivity. Many Western countries, though not the United States, have laws prohibiting speech that insults religious groups or “incites to hatred and discrimination” and, to a lesser extent, laws on public order that are used to curb controversial statements on religion and bans on blasphemy.
Bans on hate speech had their origin in concerns about Nazism and have been justified as a necessary protection for minorities. More recently, the bans have come to prominence because of fear of religiously motivated violence against, and from, Muslim minorities. Demands to respect Islam are being answered, in part, by support for laws against hate speech. While in recent decades, Western blasphemy laws have been dying out, religious hate-speech laws, which focus on perceived injury to religious feelings, are serving as proxies for them.
Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide Page 37