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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 3 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 4 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