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Transcript
Tina Ramirez
UN Human Rights Council
Parallel Event, March 2007
Anti-Vilification Laws and Their Chilling Effect on Religious Expression
Tina Ramirez
March 28, 2007
The “Defamation of Religions” Resolution: Mechanisms for Addressing Religious
Intolerance
In the few minutes I have, I will address the historical background of the defamations
resolution and the difficulties inherent in it. Since the defamations resolutions have been
raised within the context of religious intolerance, I will also look at Article 20(2) and
finally, I will offer some recommendations for how best to address the concerns
regarding rising religious intolerance and defamation of religions within the current
international legal framework.
A. Introduction
During the first session of the Human Rights Council a decision passed, “expressing deep
concern over the increasing trend of defamation of religions, incitement to racial and
religious hatred and its recent manifestations.”1 This decision called on the Special
Rapporteurs on freedom of religion and racism, as well as the High Commissioner for
Human Rights to report to back on this phenomenon. This issue was the focus of
resolutions every year in the Human Rights Commission since 1999, but the purpose of
the decision last year was to take a deeper look at the implications for addressing
religious intolerance in light of Article 20(2) of the ICCPR. While they have begun to
address this issue, the Council has before it another “defamations” resolution which
raises many of the same concerns as one’s passed in previous years. These concerns
must be addressed before passing another resolution on this issue. They include the
following:



1
The resolution does not provide a definition for “defamation of religions.” By
focusing on insulting religious institutions, the resolution goes beyond the permissible
limitations for the right to religious freedom, which solely protects the rights of
individuals or adherents of religious belief and not the belief itself.
The resolution implies that “defamation of religions” is inherently an act of
intolerance which qualifies the state’s responsibility under Article 20(2) of the
ICCPR. However, valid dissent from a particular religious belief or even criticism of
human rights abuses carried out in the name of religion may be offensive without
intending to cause religious intolerance. Such expressions would not rise to the level
of advocacy in Article 20(2).
The lack of clarity, particularly around the threshold at which expressions that incite
religious tolerance must rise in order to implicate the state’s responsibility, has led to
misapplication of this resolution throughout the world. For example, many states
justify anti-blasphemy legislation on the basis that limiting expressions offensive to
Decision 2006/107 of 29 June 2006, UN Doc A/HRC/1/L.16.
1
Tina Ramirez
UN Human Rights Council
Parallel Event, March 2007
religion is allowed under Article 20(2). However, in many instances individuals have
been convicted for expressions which do not meet the criteria found in the traveux
preparatoire for Article 20(2) or in the relevant international jurisprudence.
While the “defamations” resolutions focus on combating Islamaphobia, religious
intolerance continues to be a serious problem for many religious communities throughout
the world and is one of the major threats to religious freedom. In fact, growing
antisemitism and violence during the 1950s in western Germany led the UN to draft what
became the 1981 Declaration on the Elimination of All Forms of Discrimination on the
Basis of Religion or Belief. Last year marked the Declaration’s 25th anniversary and yet
as the Special Rapporteur on freedom of religion has noted, more work remains to be
done. Today, religious intolerance affects adherents of the Baha’i, Jewish, various
Christian and Catholic communities, Hindus, Buddhists, and indigenous faiths, among
many others.
In Egypt, Muslim bloggers are sentenced to prison for criticizing the actions of adherents
of their own faith and Baha’i have been declared by the Supreme Courts as non-Muslims
and as such are discriminated against. In Saudi Arabia and Palestine, textbooks teach
religious intolerance towards the Jews and Christians. In Iraq, the ancient Mandaean and
Chaldo-Assyrian communities have fled due to specifically being targeted for their
religious beliefs. In India, several states have passed anti-conversion laws that threaten
religious freedom and allowed violence to be carried out against the Muslim and Dalit
communities. In Sudan, individuals practicing indigenous beliefs were enslaved and
forced to convert to Islam.
The list goes on and yet each of these cases points to the critical need for religious
tolerance in all societies throughout the world. Tolerance, however, does not mean that
each religious community must accept the beliefs of the other as valid, but should allow
the individual the freedom to hold diverse religious opinions and express them without
fear of persecution. During the drafting of the 1981 Declaration a proposal was rejected
to prohibit “the expression of ideas based on religious hatred and the incitement of hatred
and discrimination based on religion or belief.”2
B. Historical Background for Defamations Resolution
As background, the “defamation of religions” issue was first introduced to the
Commission on Human Rights in 1999 by Pakistan on behalf of the Organization of
Islamic Conference under the agenda item on “racism,” even though the issue of religious
intolerance fits more appropriately within the mandate of the agenda item on freedom of
religion or belief. In its original form, the draft resolution was introduced with the title
“Defamation of Islam.” 3 According to the statements made by Pakistan as it presented
the draft resolution, it was intended to have the Commission stand up against what the
OIC felt was a campaign to defame Islam, which they argued could incite already
Donna Sullivan, “Advancing the Freedom of Religion or Belief Through The UN Declaration on the
Elimination of Religious Intolerance and Discrimination,” 82 AJIL 487.
3
E/CN.4/1999/L.40
2
2
Tina Ramirez
UN Human Rights Council
Parallel Event, March 2007
increasing manifestations of intolerance towards Muslims to a degree similar to antiSemitic violence of the past.4 The representative from Pakistan argued that this
“defamation campaign was reflected in growing intolerance towards Muslims.”
Other delegates were of the opinion that this resolution was unbalanced in its sole focus
on Islam, whereas other religions had also been and continued to be subjected to various
forms of discrimination, intolerance and even persecution. When the meeting continued,
the delegate from Pakistan agreed to change the resolution to make it inclusive of all
religions, while the text continued to reflect their concerns regarding the treatment of
Islam specifically.5 The resolution (1999/82) was then passed without a votes, however
the EU did not attach any legal meaning to the term “defamation” as used in the title.
The definition of “defamation” has not been discussed since. The resolution continued to
be raised in the Commission under the racism agenda item each year since 1999.6
[The impetus for a resolution combating the defamation of religions was reinvigorated
after the September 11, 2001 terrorist attacks, during which time a report to the
Commission on Human Rights by Doudou Diene confirmed an increase in intolerance
against Muslims.7 Increasing intolerance against Muslims in Europe may have been
fueled in part by the murder of Dutch film director, Theo van Gogh. This incident raised
concerns throughout Europe over the extent to which the public could express their views
of Islam – which some Muslims may have deemed offensive – without fear of violent
reprisal for doing so. On September 30, 2005, the editor of the Danish newspaper
Jyllands-Posten published twelve cartoons portraying the Prophet Mohammad. While
the cartoons were not intended to incite religious hatred, but rather to stimulate public
debate, many Muslim believers were offended. Some of the offended individuals
contributed to igniting a wave of violent protests throughout the world in response.]
C. Legal Framework for Article 20(2) of the ICCPR
“Any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.”
ICCPR, Article 20(2)
Object and Purpose – The Traveux Preparatoire
When considering international human rights norms or legislation implementing them, it
is important to keep in mind the object and purpose of the relevant article. According to
Manfred Nowak, Article 20 was written to prevent inciting religious or racial hatred
similar to that promoted during the Nazi campaign against the Jews. This provision
demonstrates more than any other provision in the Covenant the response effected by the
4
E/CN.4/1999/SR.61, para 1-9.
E/CN.4/1999/SR.62, para 1-9.
6
Resolutions on ‘Combating Defamation of Religions’ have been tabled and passed by the UN Human
Rights Commission annually since 1999, see Resolution 2000/84, 2001/4, 2002/9, 2003/4, 2004/6, and
2005/3.
7
E/CN.4/2003/23 in January 2003 and the follow-up report E/CN.4/2005/18/Add.4 in December 2004.
5
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Tina Ramirez
UN Human Rights Council
Parallel Event, March 2007
horrors of National Socialism. In order to combat the roots of these horrors and to
prevent the public incitement of racial or religious hatred and violence within a State or
against other States and peoples, this provision was primarily conceived of as a special
State duty to take preventative measures at the horizontal level to enforce the rights to life
(Art. 6) and equality (Art. 26).
In order to understand the context, let us review the horrors of the Holocaust of the
Jewish people during WWII. The Jewish community in Germany was used as a
scapegoat for economic problems, stigmatized as “rats” and dehumanized through
government propaganda and the media, voices of dissent were silenced, they were
physically attacked, their homes and businesses were targeted for destruction, they were
forced into ghettos and deprived of their possessions, they were then forced into
concentration camps and eventually exterminated in gas chambers or used for medical
experiments. It was in this context, that the UN adopted Article 20 of the ICCPR; to
prevent the advocacy of religious intolerance that rises to such a level as to threaten their
most basic rights to life and equality.
Therefore, Article 20 is worded different from many other provisions. It does not set
forth a subjective right but merely established limitations on other rights, particularly
freedom of expression, information, and religious freedom. In this context, while article
20(2) obligates states to prohibit specific speech through legislation, it also established a
high threshold for what constitutes incitement of religious hatred.
The right to freedom of religion or belief does not protect religious feelings or
sensitivities because it inherently includes a right to express views critical or even hostile
to the religious beliefs of others.8 Moreover, while article 20(2) requires states to prohibit
some speech, their responsibilities are qualified by the permissible limitations established
within the Covenant for particular rights. [For instance, according to article 19(3) of the
ICCPR, permissible limitations on freedom of expression include respect for the rights or
reputation of others, national security, public order, and public health and morals.
According to article 18(3) of the ICCPR, permissible limitations on the freedom of
religion or belief must be prescribed by law and necessary in a democratic society to
protect public safety, order, health, or morals and the fundamental rights and freedoms of
others. These rights are interconnected and interdependent.] Thus, article 20(2) may be
used to limit an individual’s right to freedom of expression in order to protect the
religious freedom rights of others, but only if the expression involves intentionally and
publicly inciting religious hatred, discrimination, hostility or violence against other states
or individuals.
Does “Defamation” Rise to the Level of Incitement?
Manfred Nowak and Tanja Vospernik, “Permissible Restrictions on Freedom of Religion or Belief” in
Facilitating Freedom of Religion or Belief: A Deskbook, Tore Lindholm, W. Cole Durham, Jr., Bahia G.
Tahzib-Lie (eds.), p161; Otto Preminger Institute v. Austria, European Court of Human Rights judgment of
23 August 1994, Joint Dissenting Opinion of Judges Pal, Pekkanen and Makarczyk, para 6; and Faurisson
v. France, Communication No 550/1993, Individual Concurring Opinion by Evatt and Ketzmer, co-signed
by Klein, para 8.
8
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Tina Ramirez
UN Human Rights Council
Parallel Event, March 2007
Based on the problems related to defining “defamation of religions” without conflicting
with other Covenant rights, and this brief analysis of the object and purpose of Article
20(2) of the ICCPR, I urge the Council to reconsider this resolution. In doing so, it is
important that the Council develop the best mechanism to address the increasing trend of
claims of religious intolerance, while at the same time protecting established international
human rights.
In this regard, the Council must address the permissible limitations on articles 18 and 19,
as well as the balance necessary in a democratic society between protections for the
freedom of expression – for those wishing to impart views that may be considered
offensive to a particular religious group – with the freedom of religion or belief – of those
who feel that their ability to have or manifest their religious beliefs is threatened by the
expression. For instance, states must examine on a case by case basis whether
expressions insult religious institutions or the religious beliefs of individual adherents.
When the individual’s right to freedom of religious belief is in question, then the Council
must examine the extent to which the expression is merely offensive – ie. an injury to
religious feelings and sensitivities – or an intolerant act that constitutes or rises to the
level of incitement of religious hatred. The later would qualify the state’s responsibility
to act under Article 20(2).
D. Conclusion
A number of general principles arise from the international jurisprudence on freedom of
expression that serve as a useful guide to the factors to be considered in defining
elements of increasing manifestations of incitement to religious hatred and claims of socalled “defamation of religions.” These principles also suggest possible alternatives or
adjustments to the present resolution under consideration at the Council to deal with
religious intolerance.


When dealing with the recent claims of increasing manifestations of defamation
of religions and incitement to religious hatred, certain legal and juridical aspects
of the issue need to be taken into account.
o First, the terminology needs to be clearly defined and any focus on claims
of incitement to religious hatred must take into account all religious
groups and geographic regions affected.
o Furthermore, the issue needs to be addressed within the context of the
existing international human rights standards and jurisprudence. In
particular, it is important to understand the balance between the freedom
of expression and other rights, including freedom of religion, within the
context of incitement to religious hatred in article 20(2) of the
International Covenant on Civil and Political Rights (ICCPR).
In general, contentious situations should be evaluated on a case-by-case basis, e.g.
by weighing the right of an individual to freedom of expression – including the
right to advocate views offensive to others – against the rights and freedoms of
5


Tina Ramirez
UN Human Rights Council
Parallel Event, March 2007
others, including the right to life and equality, religion or belief, and freedom
from incitement to religious hatred, discrimination, hostility or violence.
It is also important to decipher between statements intended to incite violence,
and statements intended to provoke public debate which may be used to justify
violence, but not intended to do so. Many ideas can incite violence indirectly and
not all ideas can be suppressed on the possible result alone. It is important in such
cases to identify the purpose of the speech – i.e. its intent – the context within
which it was spoken to determine its potential impact, and what the likely impact
of the expression might be.
States seeking to regulate expressions or acts that rise to the level of inciting
religious hatred should also ensure the promotion of tolerance, pluralism and
broadmindedness towards views that do not rise to this level by, for example,
educating people to be respectful of the different values and beliefs individuals
hold, while addressing and resolving these differences in a peaceful and
democratic manner.
o States review mechanisms within their control, such as the media and
educational systems, which can be used to promote free and peaceful
public debate and tolerance in order to prevent or address expressions that
could potentially incite religious hatred, violence or discrimination.
Conclusion:
I urge the Council to consider these issues before passing another defamations resolution.
Specifically, the current resolution proposed by Pakistan should remove any reference to
defamation of religions and clearly state the high threshold that exists for limitations on
Covenant rights in the case of advocacy of religious intolerance. Moreover, the
resolution proposed by Germany, quite appropriately given the context of religious
intolerance, should be passed. The German proposal reaffirms the Special Rapporteur on
religious freedom’s mandate and ability to look at issues of religious intolerance, which
was set out in the 1981 Declaration.
6