On March 24, the U.N. Human Rights Council adopted a resolution aimed at combating “negative stereotyping” and “intolerance” against persons based on religion or belief. For the first time since 1999, this resolution does not include a condemnation of “defamation of religion,” by which the Organization of the Islamic Conference (OIC) has repeatedly sought passage of a global blasphemy law to protect Islam from criticism. This development has been heralded as a major victory for the West and human-rights organizations that have long campaigned against this attack on free speech.
The threat to freedom of expression is however, far from over, and the wording of the adopted resolution includes several worrying elements. That threats to the freedom of expression remain is also confirmed by a new OIC initiative. In a March 30 press release, the OIC promised to present a new draft resolution on the issue of “Islamophobia” at the General Assembly in September. The press release also insisted that the OIC “did not back down from its position” in the Human Rights Council. According to the OIC, it was in fact Western countries that “made a major concession by accepting the new version of the resolution.”
Indeed, rather than an admission of defeat, the OIC’s acquiescence to the new Human Rights Council resolution should be seen as a change in tactics. The concept of “defamation of religion” has no basis in international human-rights law, which protects individuals, not religions as such. However, international human-rights law does include hate-speech prohibitions that encompass religion. Article 20 of the International Covenant on Civil and Political Rights states that “any advocacy of . . . religious hatred that constitutes incitement to discrimination [or] hostility . . . shall be prohibited by law.” The recently adopted resolution includes several references to Article 20. But it also mentions “derogatory stereotyping, negative profiling and stigmatization of persons based on their religion or belief” and “deplores any advocacy of discrimination . . . on the basis of religion or belief.” This wording is vague and unclear, and falls well below the threshold established by Article 20, opening this provision for abuse.
The resolution should thus be seen as an attempt by the OIC to broaden the scope of Article 20 to include instances of so-called Islamophobia, such as the Danish Mohammed cartoons, which were condemned by the U.N. special rapporteur on freedom of expression in 2006. Eleanor Roosevelt warned against precisely this sort of development when Article 20 was debated at the U.N. in the 1950s: Mrs. Roosevelt cautioned that Article 20 “would encourage governments to punish all criticism under the guise of protecting against religious or national hostility.” These views were shared by delegates of almost all other Western (and a few non-Western) states at the time. Unfortunately, as democracies cower before the power of authoritarian states abroad and politically correct elites at home, the principled defense of freedom of expression — even when it seriously offends — has become the exception rather than the norm, even in liberal democracies. The latest example is the impulse of many in the West to blame the murder of innocents in Afghanistan on the admittedly bigoted Pastor Jones, who burned a Koran, rather than on the religious fundamentalists, who killed in cold blood.
The apparent new OIC strategy based on broadening existing hate-speech provisions is much more likely to succeed than insisting on combating defamation of religion. While most Western states have abolished or ceased enforcing blasphemy laws, all countries but the U.S. have hate-speech laws in place that are actively enforced. In fact, in 2008, the EU adopted a framework decision that obliges all EU states to criminalize incitement to hatred directed against a group of persons or a member of such a group defined by race, religion, etc. Moreover, the European Court of Human Rights generally does not protect hate speech. Thus the court has sanctioned the conviction of politicians critical of Islam and Muslim immigration as well as the confiscation and censorship of films insulting the feelings of Christians. Accordingly, unlike the situation with defamation of religion, Western states cannot reject an attempt by the OIC at broadening Article 20 out of hand without the risk of being accused of hypocrisy. That is a powerful and persuasive accusation at the U.N., where Western states are often in the minority and on the defensive and therefore constantly have to compromise. We’ll soon find out how far the West is willing to compromise on freedom of expression.
— Jacob Mchangama is director of legal affairs at the Danish think tank CEPOS and external lecturer in international human-rights law at the University of Copenhagen.