Politics & Policy

A Questionable Victory for Free Speech

A U.N. body refrains from criminalizing “defamation of religion,” but troubling ambiguities remain.

For the past two years, the United States, European states, and the member states of the Organisation of Islamic Cooperation (OIC) have pretended that their past deep divisions about the relationship between free speech and religion have been laid to rest. In 2011, Human Rights Council Resolution 16/18 seemed to end a more than decade-long campaign by the OIC to criminalize “defamation of religion” under international human-rights law. All parties have hailed R 16/18 as a dramatic breakthrough and a model for combating discrimination and intolerance. The so-called Istanbul Process has seen a number of high-level meetings, one of them chaired by then–Secretary of State Hillary Clinton, aimed at consolidating the consensus and identifying the precise obligations under R 16/18.

Yet at the recent opening of the United Nations Human Rights Council’s 22nd session, two very different speeches demonstrated that the putative consensus around R 16/18 is a charade, and that the global battle over free speech has not ended in perpetual peace, but is merely suspended by an uneasy truce.

On February 26, U.S. diplomat Esther Brimmer hailed Resolution 16/18 as “a remarkable achievement” and applauded the leadership of Turkey and Pakistan as well as “the support of the OIC Secretary-General.” According to Ms. Brimmer:

The international consensus on this issue offers a practical and effective means to fight intolerance, while avoiding the false choice of restricting the complementary and mutually-dependent freedoms of religion and expression.

She went on to state that hate speech “can be marginalized and defeated, not by less speech, but by more,” and that “countless examples have taught us that attempting to outlaw free expression is as dangerous as it is ineffective.”

Accordingly, the official American interpretation of R 16/18 is basically that the international community has reached a consensus around an approach mirroring the protection of free speech under the U.S. Constitution’s First Amendment. Since no other country — including  European liberal democracies — has legal protections of speech comparable to those guaranteed by the U.S. Constitution, it would have been a remarkable success for American diplomacy if such a feat had been achieved. But as the speech by Pakistan’s representative in the council — on behalf of the OIC — demonstrated, that is not quite the case.

On 25 February, the Pakistani representative stated that

there are emerging challenges and issues which need to be addressed by international human rights law. . . . Negative stereotyping or defamation of religions is a contemporary manifestation of religious hatred, discrimination and xenophobia. While the freedom of expression is sacrosanct, it must not be exploited to incite hatred against any religion and violence against its followers.

In other words, the OIC explicitly equated “defamation of religion,” a broad and nebulous category including religious satire and criticism, with advocacy of religious hatred, which is prohibited in Article 20 of the International Covenant on Civil and Political Rights (ICCPR), a primary instrument of international human-rights law. That should not come as a surprise. In numerous speeches, the secretary general of the OIC has referred to R 16/18 as including an expansive interpretation of the prohibition against advocacy of religious hatred, which would cover Danish and French newspapers’ publication of cartoons depicting the prophet Mohammed, and which essentially amounts to smuggling a blasphemy ban in through the back door.

The American and the OIC interpretations of R 16/18 are evidently irreconcilable. Caught between these positions one finds the Europeans. On one hand, EU member states have consistently rejected the concept of “defamation of religion,” but on the other, the EU and all its member states have adopted laws against racial and religious hatred, which are often enforced. To the extent that the OIC position on R 16/18 becomes the accepted one under human-rights law, there is therefore a risk that it could affect the interpretation of hate-speech laws in liberal democracies other than the U.S. This potential danger was highlighted during the fallout from the crude anti-Islamic film The Innocence of Muslims, when EU High Representative for Foreign Affairs and Security Policy Catherine Ashton issued a joint press release with the OIC and the Arab League. The statement invoked R 16/18, mentioned the prohibition against advocacy of religious hatred, and emphasized the need to “respect all prophets.”

Even more dangerous is the potential effect in states with little tradition of free speech and the rule of law, where the OIC position could legitimize repression of political and religious speech in the name of human rights. Russia has frequently used religious-hate-speech laws in this way by convicting artists deemed to have insulted the Orthodox Church and Christians. In OIC states the stakes are even higher. International legal legitimization of efforts to criminalize blasphemy and religious offense could have severe consequences for already vulnerable religious minorities, secularists, and those with heterodox religious beliefs considered “blasphemous” or “offensive” by governments monopolizing religious thought.

The U.S. should be lauded for standing firm on the need to counter intolerance and hatred through debate rather than censorship. However, failing to directly confront the OIC’s rival interpretation of R 16/18 is not a sustainable position if the U.S. wants to promote freedom of conscience, expression, and religion at the global level. The U.S. should explicitly state its disagreement with the OIC over the interpretation of R 16/18. In doing so, the U.S. could point to interpretations of the ICCPR by the UN Human Rights Committee (not to be confused with the Human Rights Council). The Committee has clarified that the covenant protects blasphemy and offers a higher level of protection of freedom of expression than that found in many European states.

Moreover, in any future sessions of the Istanbul Process, the U.S. should insist on a different focus. Currently the underlying premise of these discussions is that religious intolerance, hatred, and extremism are Western phenomena aimed primarily against Muslims. Yet legal discrimination against Muslims, such as the Swiss ban on building more minarets and the French ban on the burqa, are exceptions to the rule that Muslims are free to practice their faith in the U.S. and Europe. Moreover, the relatively few appalling acts of mosque burnings and violence against Muslims are rightly condemned and prosecuted in the U.S. as well as Europe.

These problems pale in comparison with the levels of religious intolerance, discrimination, and violence found in many OIC states. In Pakistan, Shia Muslims are being killed in the hundreds by Sunni extremists, with insufficient official reaction; Ahmadiya Muslims are legally discriminated against in the constitution; and Christians are disproportionately targeted by vague and nebulous blasphemy laws. In Egypt, human-rights organizations report that respect for basic human rights is worse under President Morsi than it was during Mubarak’s autocracy. The new Egyptian constitution fails to guarantee freedom of conscience and religion for many minorities.

The U.S. and the EU should insist that such issues be addressed and discussed as part of discussions with the OIC, and that the remedy for such intolerance, violence, and discrimination lies in respecting rather than limiting freedom of expression and religion. Papering over fundamental differences in an effort to buy peace with the OIC is no long-term strategy for promoting human rights around the world and protecting the hard-won freedoms enjoyed by citizens of liberal democracies and denied to those in autocracies.

Jacob Mchangama is managing director of the Freedom Rights Project and director of legal affairs at the Danish think tank CEPOS.

Jacob Mchangama — Mr. Mchangama is head of legal affairs at the Danish Center for Political Studies, lecturer on international human-rights law at the University of Copenhagen, and co-founder of Fri Debat, a Danish-based network committed to the protection of freedom of expression.


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