On March 24, the U.N. Human Rights Council one again adopted a resolution intended to combat “negative stereotypes” and “intolerance” of persons based on religion or belief. For the first time since 1999, a resolution of this recurrent type did not include a reference to “defamation of religion,” the concept by which the Organization of the Islamic Conference (OIC) has sought imposition of a global blasphemy law to protect Islam from criticism. The development has been heralded as a victory for the West and for human-rights organizations that have long campaigned against this attack on free speech.
The issue of defamation of religion has been divisive at the U.N., pitting the OIC and its supporters against Western states. The OIC’s insistence on criminalizing defamation is a manifestation of the ongoing challenge to the idea of universal human rights by a number of non-Western states, including Muslim ones. These states view the idea of universal human rights as a form of soft imperialism, threatening their traditional cultural and religious values. In 1990, the OIC states adopted their own “Cairo Declaration on Human Rights in Islam,” which seeks to reconcile Islam with human rights — to an extent: All the rights in the Cairo Declaration are subject to the often illiberal rules of sharia law. Thus, Article 22 states that “everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah.” In a 1995 debate at the U.N., the OIC clarified what subjecting free speech to sharia entails, arguing that “the right to freedom of thought, opinion and expression could in no case justify blasphemy.” Moreover, the OIC definition of blasphemy is extremely far-reaching, as witness the widespread use of blasphemy laws in countries such as Egypt, where blogger Kareem Amer spent four years in prison for insulting Islam (and Pres. Hosni Mubarak), and Pakistan, where hundreds have been prosecuted for blasphemy, with religious minorities being disproportionately targeted. Even relatively modern Indonesia has seen a number of blasphemy cases.
It is this kind of law that the OIC has tried to turn into an international human-rights norm. The first resolution offered by Pakistan on behalf of the OIC in 1999 came under the title “Defamation of Islam,” but after some debate it was changed to “Defamation of Religions.” It expresses “deep concern at negative stereotyping of religions” and states that “Islam is frequently and wrongly associated with human rights violations and with terrorism.” The resolution also “expresses its concern at any role in which the print, audiovisual or electronic media or any other means is used to incite acts of violence, xenophobia or related intolerance and discrimination towards Islam and any other religion.” The 1999 and 2000 resolutions on defamation of religion were adopted unanimously, without a vote. That initial passivity undoubtedly advanced the ever more aggressive agenda of the OIC. Since 2001, resolutions on defamation have become increasingly comprehensive and hostile to freedom of expression. Resistance to their more aggressive character means that they now are being put to a vote, both in the Human Rights Council (HRC) and, since 2005, in the General Assembly.
After peaking in 2003, resolutions on defamation of religion have steadily lost votes in both the HRC and the General Assembly. In 2003, 32 countries voted in favor, with 14 against and 7 abstaining. In 2010, those numbers were 20, 17, and 8. The OIC was also dealt a blow at the Durban Review Conference held in Geneva in 2009. The OIC had lobbied hard for the inclusion of a reference to defamation of religion, but the final-outcome document, while very far from perfect, did not include direct defamation language. Dwindling support, as well as the murder of two Pakistani politicians critical of Pakistan’s blasphemy laws, has likely been key to the OIC’s realization that defamation-of-religion resolutions — for now — are a dead end at the U.N.
While the failure of the OIC to win support for a 2011 resolution constitutes a significant and positive step, the threat to freedom of expression is far from over, and the wording of the adopted resolution includes several worrying elements. That threats to freedom of expression remain is confirmed by a new OIC initiative: In a March 29 press release, the OIC promised to present a new draft resolution on the issue of “Islamophobia” at the General Assembly in September. The OIC said that it “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.” The OIC also stated that the concept of defamation “has not been abandoned, and it is still valid, and can be resorted to if necessary.”
Rather than an admission of defeat, the OIC’s acceptance of the new Human Rights Council resolution should therefore be seen as a change in tactics. The concept of “defamation of religion” has no basis in international human-rights law, which protects individuals rather than 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 the wording of Article 20. But it also mentions “derogatory stereotyping, negative profiling and the stigmatization of persons based on their religion or belief” and “condemns . . . any advocacy of religious hatred that constitutes incitement to discrimination.” This wording is vague and unclear, opening the possibility of 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 2005. The broadening of Article 20 and the emphasis on the enforcement of this hate-speech clause were the consequence of the final-outcome document of the Durban Review Conference and a 2009 compromise resolution on freedom of expression cosponsored by the United States and Egypt at the Human Rights Council.
Eleanor Roosevelt warned against precisely this sort of development when Article 20 was first debated at the U.N. in the 1950s and 1960s, cautioning that it would give governments license to punish all criticism under the guise of suppressing religious hostility. These views were shared by delegates of almost all other Western (and a few non-Western) states at the time. Unfortunately, as Western societies cower before the power of authoritarian states abroad and politically correct elites at home, the principled defense of freedom of expression — even expression that 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 Terry Jones, a disturbed Christian pastor who burned a Koran, rather than on the Muslim fundamentalists who killed in cold blood.
The new OIC strategy based on broadening existing hate-speech provisions is much more likely to succeed than would be an insistence on combating defamation of religion. While most Western states have abolished or ceased enforcing blasphemy laws, all countries, with the exception of the U.S., have hate-speech laws in place, and they are often actively enforced. In 2008, the EU adopted a framework that obliges all EU states to criminalize incitement to hatred directed against a group defined by race, religion, etc., or a member of such a group. 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. Moreover, most Western human-rights organizations, even ones dedicated to the protection of freedom of expression, support hate-speech laws and their enforcement. Accordingly, unlike the situation with defamation of religion, Western states cannot reject an attempt by the OIC to broaden Article 20 without the risk of being accused of hypocrisy. That is a powerful and persuasive accusation at the U.N., where Western states often are in the minority and on the defensive, and therefore constantly have to compromise.
We will soon find out how far the West is willing to compromise on freedom of expression.
– Mr. Mchangama is director of legal affairs at the Danish think tank CEPOS and an external lecturer in international human-rights law at the University of Copenhagen.