Taken from ‘Defamation of Religions: International Developments and Challenges on the Ground‘ for the SOAS International Human Rights Clinic Project and the Cairo Institute on Human Rights Studies (2011)

As now established, international support for the OIC-sponsored resolutions has been waning since a high point in 2006, despite the minor concessionary changes in language.[1] This section aims to establish the present consensus on the concept at the UN, both in the reception of the resolutions in the past year and through the expressions of official opinion via various other UN fora.

The 2010 resolution at the HRC in March 2010 saw its lowest margin yet, placing it just four votes from defeat: 20 states in favour and 17 against.[2] Argentina and Zambia voted against the resolution for the first time, and according to the UN monitoring group, International Service for Human Rights (ISHR), Chile, Argentina and Mexico made strong statements during the vote that voiced their commitment to upholding the freedom of expression while combating all forms of intolerance.[3] In November 2010 at the UN‘s Third Committee the draft resolution was also passed by a 12-vote margin (81 to 55 with 43 abstentions), which was much lower than the previous year’s 26 (76 to 64 with 42 abstentions), and was upheld in December’s GA.[4] Although a small number of states moved to abstain after holding positions against the resolution, no new states chose to support it.

Both 2010 resolutions express ‘deep concern that Islam is frequently and wrongly associated with human rights violations and terrorism’ and directly reference the ‘special duties and responsibilities’ and thus the possible legal limits of free expression as contained in Articles 19 and 20 of the ICCPR. Yet as noted earlier, they do not call for the criminalisation of defamation, as requested by the OIC at the second session of the Ad Hoc Committee in 2009. According to the bulletin released by the Department of Public Information in November 2010, the issues raised in the Third Committee tracked similar fault lines from previous debates through the decade: there were requests from several delegations that there be less focus on Islam in particular.[5] Albania and India expressed disapproval that the text continued to promote research into the link between defamation and racism; and various states expressed concerns for the harm the resolution could do to free expression. Focus was again brought to the ICCPR and also, by Finland, to the ICESCR in its appeal to states to ratify the treaties and consider their optional protocols. In turn, OIC states, represented by Syria, continued to stress the increase in ‘demonic’ portrayals of Islam and Muslims and anti-Muslim legislation, such as the restrictions being imposed on the construction of places of worship, and to lobby for stronger legal and administrative measures in response. They bolstered this appeal with references to the United Nations Global Counter-Terrorism Strategy and other international law provisions, including the joint statement by the Secretaries-General of the United Nations and the OIC, and the High Representative for Common Foreign and Security Policy of the European Union in Doha, on 7 February 2006, in which they underscored the need for sensitivity to the issue. [6]

Nevertheless the outlook for the resolution was largely unfavourable for the OIC and its supporting states, as reported widely by media and independent UN monitoring agencies such as the ISHR, which noted:

Diminishing support for the draft resolution ironically followed more open and transparent negotiations this year. Though many states praised the Moroccan-led negotiations, the US deemed the outcome worse in terms of substance from previous years. And despite the EU and US urging states to find common ground through other means than the divisive resolution, the OIC  said it would pursue the issue ‘relentlessly’, including bringing the resolution to the Assembly again next year.[7]

2.3.1 UN Special Procedures on defamation of religions

As noted briefly above, the work of independent experts within the UN has been building an influential body of opinion on the subject of defamation of religions since the concept was first proposed in 1999. The issue has featured prominently in the reports and studies of three Special Rapporteurs in particular: on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; on freedom of religion or belief; and on the promotion and protection of the right of freedom of opinion and expression. Although each has explored the issue in relation to his or her mandate, their findings and opinions have tended to align and overlap in main areas.

i) On the relationship between defamation of religions and the freedom of expression

In 2006, for example, when the defamations resolution was at the height of its support, the Special Rapporteur on freedom of religion or belief reported on the potential threat to free expression, warning that ‘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’,[8] while in 2008 the Special Rapporteur on freedom of expression reiterated that protections within this article relate ‘not only to comfortable, inoffensive or politically correct opinions, but also to ideas that offend, shock and disturb’. He also noted that laws under Article 20(2) should be clearly and narrowly defined, should not intrude on freedom of expression, and should be applied by an independent judiciary.[9] By using Article 20 to draw the parameters of the provisions, the experts who have held three rapporteur positions during the past decade have consistently recommended that they be interpreted in light of Articles 18 and 19 of the ICCPR, as laid out in General Comment 10 from the HRC.[10] Each Special Rapporteur has also expressed concerns – which have been echoed and reinforced by many NGOs – that the terminology and implications of the resolutions on defamation in relation to religion are unclear. The Special Rapporteur on freedom of expression in particular, has cited concerns that Article 20 is meant to protect individuals, not belief systems.

In 2008 the Special Rapporteur on racism, Githu Mugai, delivered a report by his predecessor Doudou Diene that called on member states to replace ‘defamation’ with the legal concept of ‘incitement to national, racial or religious hatred’, a concept which is already grounded in international legal instruments.[11] Muigai maintained focus on the theme during his tenure, as seen during the Durban Review Conference in which he: ‘reiterate[d] the recommendation of his predecessor to encourage a shift away from the sociological concept of the defamation of religions towards the legal norm of non-incitement to national, racial or religious hatred’.[12] In a second report on the same platform Muigai stressed the need for states to strike a balance between the right to freedom of expression and their moves to counter extremist political parties, movements and groups.[13]

The continuity of this opinion was recently confirmed by the new Special Rapporteur on the freedom of religion or belief Heiner Bielefeldt. In his first interactive dialogue with the GA’s Third Committee in October 2010 he referred to the ‘chilling effect’ that new legal provisions, as urged by OIC representatives, could have on the freedom of expression. The phrase is one used frequently by UN Rapporteurs to express particularly strong concern.

It is important that any limitations on freedom of expression deemed necessary to prohibit incitement to religious hatred be defined with the utmost diligence, precision and precaution. The threshold for any limitations must be very high in order not to have a chilling effect on the exercise of freedom of expression or other human rights. Such precaution is also in the interest of freedom of religion or belief, because a societal atmosphere of openness enhances the chances of dispelling stereotypes and prejudices. At the same time, freedom of religion or belief does not include the right for one’s religion or belief to be free from criticism or all adverse comment.[14]

ii) On religious discourse

Experts serving under those three UN mandates have also shared concerns for the negative impact that the defamation concept may have on religion. Their reports have often concluded with recommendations for states to promote unrestricted dialogue within and among religions.  This is a cause most strongly advocated by the Special Rapporteur on the freedom of religion, such as the often-made observation by previous mandate-holder Asma Jahangir, that ‘the  recognition, respect and practice of religious pluralism  . . . encompasses criticism, discussion and questioning  of each other’s values’,[15] and that the concept of defamation of religions is dangerous because it can be used to legitimize blasphemy laws that ‘punish members of religious minorities, dissenting believers and non-theists or atheists.’[16]

This position was reflected in the terms of the mandate itself, which was heavily debated before it was renewed at the Human Rights Council in 2010; the changes made upon its renewal have since been referred to by states in various bids to restrict and redirect the mandate holder.[17] Although the terms of the mandate now include the condemnation of incidents of incitement to religious hatred, discrimination, intolerance and violence, as requested by Pakistan, consensus was not found on the calls for the Special Rapporteur to examine incidents of religious intolerance and to ensure respect for places of worship.[18] This is not the only time the debate has been taken into the terms of a Special Rapporteur’s mandate. As noted by a 2008 report from the Quaker United Nations Office:

[A] contentious thematic mandate was the Special Rapporteur on Freedom of Expression. This was linked to the question of religion since the controversy revolved around the limits to freedom of expression in relation to religion (ie, the ‘cartoons’ issue).  The mandate was amended by vote (27-13-3) to include reporting ‘abuse of the right to freedom of expression that constitutes an act of racial or religious discrimination, taking into account Articles 19(3) and 20 of the International Covenant on Civil and Political Rights, and General Comment No. 15 of the Committee on the Elimination of Racial Discrimination… This amendment led to many of the original co-sponsors withdrawing their co-sponsorship: the resolution as amended was adopted by vote (7/36; 32-0-15).[19]

The importance of dialogue among religions has featured in the work of the other Special Rapporteurs. In a report on religious defamation, shortly after the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, Special Rapporteur on racism Doudou Diene urged states to promote dialogue between cultures, civilizations, and religions, and to ensure that any efforts to combat discrimination addressed religions equally.[20] In a joint statement issued a few years later at the Durban Review Conference, Jahangir, Maigui and La Rue warned that to legalise the concepts of defamation and blasphemy would make them more open to abuse.

Whereas some have argued that defamation of religions could be equated to racism, we would like to caution against confusion between a racist statement and an act of ‘defamation of religion’… There are numerous examples of persecution of religious minorities or dissenters, but also of atheists and non-theists, as a result of legislation on religious offences… The right to freedom of expression constitutes an essential aspect of the right to freedom of religion and belief … essential to creating an environment in which a critical discussion about religion can be held. [21]

They later elaborated, at the same session:

Several religions are characterised by truth claims – or even by superiority claims – which have been traditionally accepted as part of their theological grounds. Consequently, the elements that constitute a racist statement may not be the same as those that constitute a statement ‘defaming a religion’ as such. To this extent, the legal measures, and in particular the criminal measures, adopted by national legal systems to fight racism may not necessarily be applicable to defamation of religions.[22]

iii) On religious intolerance

Despite their reluctance to fully support proposals from the OIC member states on defamation of religions, independent experts at the UN have prominently recognised the rise of certain types of negative religious stereotyping in their work, and the need to urgently address this via state policy. For example, in the concluding recommendation of Special Rapporteur on racism, Doudou Diène’s report at the Durban Review Conference Report to the GA on defamation of religions and the implications of Islamophobia, he stresses:

[…] the need to pay particular attention and vigilance to maintain a careful balance between secularism and the respect of freedom of religion. A growing anti-religious culture and rhetoric is a central source of defamation of all religions and discrimination against their believers and practitioners. In this context governments should pay a particular attention to guaranteeing and protecting the places of worship and culture of all religions.[23]

Asma Jahangir has similarly emphasised that although intolerant behaviour does not necessarily constitute a human rights violation it still tends to polarize religious groups and affect social cohesion, and that the judiciary should play a role in assessing whether incidents amount to violations.[24] In her final report as Special Rapporteur on the freedom of religion in 2010, she reiterated her opinion that the advocacy of religious hatred should be prohibited by law,[25] and although she consistently defined the parameters of legal action according to the provisions in existing international treaties (noting that she sees them as a positive alternative to blasphemy laws), the Rapporteur recommended that their interpretation be revisited, notably via the HRC’s General Comment No. 11 (1983) on Article 20 of the ICCPR.[26]

However, expressed in this way, the Special Rapporteurs’ support for explorations into defamation as a legal concept has been modest in comparison to the proposals made by OIC member states and their supporters. The past two Special Rapporteurs on racism have promoted further examinations on Article 20 in their reports, stressing that the concept of incitement to religious hatred could be identified within an effective legal framework; they have also, perhaps more robustly, backed the discussions on the development of complementary standards through the CERD.[27] The Special Rapporteur on expression has restricted his recommendations to improving the implementation of existing provisions of the ICCPR and the ICERD.

Like many of the NGOs involved in this debate, the three UN-based experts have united in their call for states to take a holistic approach to the discouragement of hate speech and discrimination, and to draw on education, community and inter-faith dialogue, and initiatives within the media, rather than legislation. In the two latest reports from Githu Maigui, released mid-2010 – one specifically concerned with the implications of Islamophobia – the Special Rapporteur on racism concluded that the most effective way to combat religious intolerance is to implement policy measures that deal with the ‘root causes’ of intolerance, which reflects his predecessor’s opinion in 2007 on ‘the need to complement legal strategies with an intellectual and ethical strategy relating to the processes, mechanisms and representations which constitute those manifestations over time’ due to their ‘historical and cultural depth’.[28] As mentioned, religious intolerance has been an established issue of concern at the UN since a declaration was first drafted on the issue in 1981, and this is regularly renewed;[29] it also frames much of the mandate of the Special Rapporteur on Religion.[30]

2.3.2. The High Commissioner on Human Rights and the Secretary General

Supporting the work of these three mandates has been that of the UN High Commissioner on Human Rights (HCHR) and the UN Secretary General (SG) who have initiated various surveys and expert consultations on religious defamation in the latter half of the past decade. A significant contribution by the HCHRs (firstly by Louise Arbour, and from September 2008, Navanethem Pillay) were special studies of laws and practices on defamation as requested by the Human Rights Committee, which in 2006 led to Arbour calling for a unified understanding of incitement norms in the ICCPR and ICERD, due to the lack of clarity on key elements such as the definitions of ‘incitement’, ‘hostility’, and ‘hatred’.[31]  Reporting to the HRC in 2007, the HCHR stressed the need for enhanced cooperation and stronger political will by member states in combating defamation of religions’, and this led to further consultations and reports. A 2008 survey among states led the HCHR to confirm that their understandings of the term ‘defamation’ addressed ‘somewhat different phenomena and appl[ied] various terms such as contempt, ridicule, outrage and disrespect to connote defamation’.[32] The Commissioner’s work has highlighted the grey areas that remain between the criticism of religion, the persecution of religious persons and the concept of religious defamation.

The call for holistic measures has been recently amplified meanwhile, by the SG, who rather than recommending legal responses to defamation, has chosen to root the debate in the wider theme of religious intolerance, and to back recommendations by UN Independent Experts.[33] In a July 2009 report to the GA the SG noted that ‘[i]n order to tackle the root causes of intolerance, a much broader set of policy measures needs to be addressed covering the areas of intercultural dialogue as well as education for tolerance and diversity’. This call for holistic measures has boosted the UN’s attempt to address the issue of religious intolerance via a global programme of seminars and workshops such as one held in June 2009 entitled ‘Unlearning Intolerance’ which addressed the dangers of ‘cyberhate’ and ‘digital demonisation’.[34] The SG’s report on defamation listed the interaction of the HCHR with the issue in various fora during the past few years, such as a press release expressing regret at Switzerland’s ban on minarets, and an address expressing concern at the discriminatory nature of profiling at the Counter Terrorism Committee of the Security Council.  He and the HCHR have also noted that jurisprudence has also been building in the Human Rights Committee regarding the Optional Protocol to the ICCPR and ICERD, and the latest report of the HCHR features various cases taken by claimants alleging incitement to discrimination, hostility or violence. Although most claims have failed, there have been dissenting opinions.[35]

2.3.3 The Durban Review Conference and the Ad Hoc Group

As well as being reflected in the language of UN resolutions, this body of opinion has been influential in the drafting of other reports, such as the Outcome Document of the April 2009 Durban Review Conference and the Draft Resolution on the right to freedom of expression, co-sponsored by the USA and Egypt and passed later that same year.[36]  Both saw the marked softening of language relating to incitements and defamation proposed by the OIC, instead invoking terms such as ‘negative stereotyping’, drawn from the ICCPR. UN experts, among them the Special Rapporteur on racism and the HCHR, have opined that the consensus reached in the Outcome Document was a satisfying balance, reaffirming both the importance of freedom of expression and the need to curb hate speech. The HCHR has recommended that the language of the document be used by policymakers to define domestic measures.[37] Nevertheless the Outcome Document was recognised as having given particular weight to the issue in the eight references it made to incitement, and in the Intergovernmental Working Group that was established at the close of the conference to look into the content and scope of a possible Optional Protocol to the ICERD, and which gave rise to the Ad Hoc Committee on Complementary Standards. Although its meeting in late 2009 was reported as being more constructive than its first session, progress was minor, and EU states continue to oppose OIC states on the need for complementary standards. A third meeting planned for the end of 2010 has been postponed until early 2011.

2.3.4. General Comment 34 on Article 19

This debate continues among the drafting committee members of the Human Rights Committee’s General Comment No. 34 on Article 19 of the ICCPR (hereafter General Comment 34), to further safeguard the right to freedom of opinion and expression.[38] The first draft, completed in October 2010, discusses the acceptable limitations on the right to expression, stressing that to criminalise the holding of an opinion violates human rights norms. In general terms, draft General Comment 34 notes that any limitations must be justified and with proof of a clear threat, that imprisonment is never an appropriate penalty for any form of defamation and that all such criminal laws should be repealed unless they are applicable under Article 20. It also draws attention to anti-discrimination content in the Committee’s General Comment No. 22, urging states to base their action ‘on principles not deriving exclusively from a single tradition’ when citing actions taken in the protection of morals.[39] The committee is brief in its reference to blasphemy, listing the international legal limitations on its criminalisation without further interpretation, and stressing that any criminal law provisions that do not comply with Article 20 should be repealed. It does note that blasphemy laws should apply to adherents of all religions equally, and should not be used to prevent commentary on religious doctrine.

General Comments are a way for the UN committees to assist and promote the article of the covenant, ease conflicts of interpretation and highlight de facto insufficiencies that may have come to light in reports to the body, and are cited by organisations and in judicial decisions.[40] As it stands, General Comment 34 reflects agreement with the recommendations made by UN independent experts and a lack of support for moves to prohibit forms of defamation relating to religion. However this language will likely be challenged, and may see some change when the draft is put to state parties in 2011.
——————————————————————————–

[1]    The Becket Fund, ‘UN efforts to pass a Binding International Blasphemy Law, 2010’,Spring 2010, www.becketfund.org/files/international%20blaspemy%20memo.pdf.

[2]    HRC, Res. 13/16, 15 April 2010, A/HRC/RES/13/16, in favour: Bahrain, Bangladesh, Bolivia, Burkina Faso, China, Cuba, Djibouti, Egypt, Indonesia, Jordan, Kyrgyzstan, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal and South Africa (20). Against: Argentina, Belgium, Chile, France, Hungary, Italy, Mexico, Netherlands, Norway, Republic of Korea, Slovakia, Slovenia, Ukraine, United Kingdom, United States of America, Uruguay and Zambia (17). Abstaining: Bosnia and Herzegovina, Brazil, Cameroon, Ghana, India, Japan, Madagascar and Mauritius (8). Angola and Gabon were absent at the vote.

[3]    ISHR ‘Human Rights Council: changing dynamics on ‘defamation of religions’, April 14, 2010, http://www.ishr.ch/archive-council/735-human-rights-council-changing-dynamics-on-defamation-of-religions.

[4]    GA, 23 November 2010, GA/SHC/4001.

[5]    Ibid.

[6]    GA, Res. 61/49, 12 February 2006, A/RES/61/49.

[7]    ISHR, ‘Support for ‘defamation of religion’ continues to decline; draft resolution passes by only 12 votes’, 25 November 2010, http://www.ishr.ch/general-assembly/964-support-for-defamation-of-religion-continues-to-decline-draft-resolution-passes-by-only-12-votes.

[8]    HRC, 20 September 2006, A/HRC/2/3, para 50.

[9]    HRC, 28 February 2008, A/HRC/7/14, para 66.

[10]  ICCPR General Comment No. 10: Freedom of expression (Art. 19), 29 June 1983.

[11]  HRC, 1 July 2009, A/HRC/12/38.

[12]  Ibid, para 7.

[13]  HRC, 16 April 2010, A/HRC/14/45.

[14]  A statement by Heiner Bielefeldt, Special Rapporteur on freedom of religion or belief,  65th session of the General Assembly, Third Committee,  21 October 2010.

[15]  HRC, 20 September 2006, A/HRC/2/3, para 65.

[16]  GA, 20 August 2007, A/62/280.

[17]  HRC Res. 14/11, 23 June 2010, A/HRC/RES/14/11.

[18]  These terms were brought up in the 2010 interactive dialogues with the special procedures on racism and on freedom of religion and belief at the Third Committee, in which Ms. Jahangir’s understanding of the defamations concept was critcised and her successor reminded of the new terms of his mandate by Pakistan.

[19]  Quaker United Nations Office: Digging Foundations or Trenches? UN Human Rights Council: Year 2, August  2008.

[20]  GA, 21 August 2007, A/HRC/6/6.

[21]  Read by the Rapporteurs at a UN-organised side-event at the Durban Review Conference, 22 April 2009.

[22]  Joint statement by the three Special Rapporteurs in summarising the conclusions of the 2008 OHCHR ‘Expert Seminar on the Links between Articles 19 and 20 of the ICCPR’, convened by the UN High Commissioner for Human Rights, 22 April 2009.

[23]  HRC, 21 August 2007, A/HRC/6/6, para 78.

[24]  In the Rapporteur’s report to the HRC at its tenth session in 2009.

[25]  GA, 29 July 2010, A/65//207.

[26]  GA, 20 August 2007, A/62/280; HRC, 7 February 2008, A/HRC/7/10/Add.3.

[27]  ,HRC, 2 September 2009, A/HRC/9/12.

[28]  GA, 21 August 2007, A/HRC/6/6 , para 78

[29]  Such as Resolution 64/164 adopted in the Human Rights Council on 17 March 2010.

[30]  The mandate title was originally UN Special Rapporteur on Religious Intolerance, and was changed to the UN Special Rapporteur on Freedom of Religion or Belief by the UN Human Rights Commission and the UN General Assembly in 2000.

[31]  HRC, 20 September 2006, A/HRC/2/6.

[32]  HRC,12 September 2008, A/HRC/9/7, para 67; see also HRC, 5 September 2008, A/HRC/9/25.

[33]  GA, 31 July 2009, A/64/209.

[34]  These and others are listed in the report of the UN HCHR on ‘The implementation of Human Rights Council resolution 10/22 entitled ‘Combating defamation of religions’, HRC, 11 January 2010 A/HRC/13/57.

[35]  Ibid. The report refers to cases such as Vassilariat al  V. Greece, Communication No. 1570/2007, CCPR/C/95/D/1570/2007 (2009);  and Kasem Said Ahmad and Asmaa Abdol-Hamid v. Denmark, Communication No. 1487/2006, which both invoked Article 20 of the ICCPR.

[36]  See Sections 1 and 2.2

[37]  HRC, 1 July 2009, A/HRC/12/38.

[38]  HRC, 25 November 2010, CCPR/C/GC/34/CRP.5.

[39]  UN CCPR General Comment No. 22, ‘ The right to freedom of thought, conscience and religion (Art. 18)’, adopted   on 30 June 1993, CCPR/C/21/Rev.1/Add.4.

[40]  Boyle, ‘Soft Law in International Law-making’ in Evans (ed) International law, Oxford University Press, Oxford; New York: 2006