Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide (47 page)

Jahangir rejected the view that religions, as such, should be protected, since there are divisions both within and among religions. As a Pakistani Muslim human rights activist herself, and one who had suffered from religiously based attacks, she honed in on this essential point: “[I]ndividuals who belong to a majority religion are not always free from being pressured to adhere to a certain interpretation of that religion [and] should therefore not be viewed as parts of homogenous entities. For that reason, inter alia, international human rights law protects primarily individuals in the exercise of their freedom of religion and not religions per se.”
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In this context, she considered provisions from Article 18 of the International Covenant on Civil and Political Rights (ICCPR), which reads: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Critically, Jahangir concluded that the right to freedom of religion “does not include the right to have a religion or belief that is free from criticism or ridicule” and that religious rules are not always generally applicable. She agreed that freedom of expression can be legitimately curtailed to suppress “advocacy that incites to acts of violence or discrimination against individuals on the basis of their religion,” but she argued that defamation of religions per se “does not necessarily or at least directly result in a violation of their rights.”
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While Article 20 of the ICCPR prohibits advocacy of national, racial, or religious hatred, Jahangir argued that this provision should only be applied to quash “incitement to imminent acts of violence or discrimination against a specific individual or group.” And, while Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) prohibits “dissemination of ideas based on racial superiority or hatred” and “incitement to racial discrimination,” Jahangir contended that “the elements that constitute a racist statement are not the same as those that constitute a statement defaming a religion,” so similar legal measures would not necessarily be appropriate. She concluded with the warning that “[a]t the global level, any attempt to lower the threshold of Article 20 of the Covenant would not only shrink the frontiers of free expression, but also limit freedom of religion or belief itself.” Most surprisingly, given Diène’s involvement, the report concluded that “[t]he situation will not be remedied by preventing ideas about religions from being expressed.”
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Neither Diène nor the OIC, however, was prepared to accept this conclusion. From 2003 onward, now often citing Diène’s reports, OIC countries made more
pointed attacks on freedom of expression in the Commission on Human Rights. Then, in 2004, the UN General Assembly (GA) took up the question of Islamophobia and, in the following year, for the first time in the GA, Yemen for the OIC introduced a text almost identical to those in the commission.
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Despite opposition from the United States, the EU, and India, the resolution was adopted 101–53–20 (i.e., twenty abstentions).
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The 2005 resolution began to link “defamation of religions” to antiterror efforts, maintaining that, “in the context of the fight against terrorism and the reaction to counter-terrorism measures,” defamation of religions is “an aggravating factor that contributes to the denial of fundamental rights and freedoms of target groups.”
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After the Danish cartoons controversy amplified the OIC’s and others’ allegations of defaming Islam, the campaign gained momentum. In December 2005, the UN High Commissioner for Human Rights, Louise Arbour, wrote to the UN deploring “any statement or act showing a lack of respect towards other people’s religions.”
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The grand sheikh of Egypt’s Al-Azhar University, and the OIC, at its 2005 “Extraordinary Summit” in Mecca, both decided “to have the United Nations counter Islamophobia.”
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In 2006, they were joined in this effort by Arab League leaders, and the Muslim Brotherhood’s Yusuf al-Qaradawi urged “a binding resolution banning contempt of religious beliefs.”
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By 2006, the United States began offering a more comprehensive critique, saying that the resolution “did not take into consideration basic rights which were held dear by many, including the freedom to express negative opinions about a specific religion or all religions in general.” The EU rejected the validity of “defamation of religions,” emphasizing the need to protect individuals rather than religions themselves: “Members of religions or communities of belief should not be viewed as mere particles of homogeneous and monolithic entities.”
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Meanwhile, the EU worked for a compromise text aimed at “incitement to religious hatred” rather than defamation.
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The Human Rights Council that replaced the discredited Commission on Human Rights in 2006 continued its predecessor’s practices. Western opposition drew off support for the resolution year by year so that, by 2010, one passed with only a three-vote margin; and, in 2011, with memories still fresh of the assassinations of Pakistan minister Shahbaz Bhatti and governor Salman Taseer, the OIC, fearing defeat, did not introduce a defamation of religions resolution. It had been Pakistan, representing the OIC, that had introduced the antidefamation resolution adopted by the Human Rights Council at its very first session in June 2006.

In 2006, the council resolution had expressed “deep concern over the increasing trend of defamation of religions, incitement to religious hatred and its recent manifestations” and mandated the High Commissioner for Human Rights to investigate these issues, in addition to commissioning a report.
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By 2007, the council was back to adopting a resolution expressly entitled “Combating Defamation of Religions,” cosponsored by Pakistan for the OIC and by Venezuela.
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As usual, it mentioned specifically only the situation of Islam and
Muslims and once again took note of the 2005 Mecca summit.
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The resolution drew strong protests from Western NGOs, including the Jubilee Campaign, the Becket Fund, Amnesty International, Human Rights Watch, and Freedom House.
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That year, UN Secretary-General Ban Ki-Moon himself appeared to endorse criminalizing “defamation of religions” by declaring in one UN report, “A trend is emerging towards amending criminal codes to reflect the existence of the different phenomena constituting defamation of religions. The persistence of these phenomena, however, proves that further efforts need to be made.”
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Meanwhile, OIC delegates were increasingly vocal in deploring the menace of unrestricted free speech. During a 2007 Council on Human Rights discussion, the Egyptian representative, Ihab Gamaleldin, asserted that “the offensive publication of portraits of Prophet Muhammad … has highlighted the damage that freedom of speech if left unchecked may lead to. Not only by hurting the religious feelings of more than a billion people, but also to their freedom of religion and their right of respect for their religion.”
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Delegate Marghoob Saleem Butt of Pakistan remarked, “Unrestricted and disrespectful freedom of opinion creates hatred and is contrary to the spirit of peaceful dialogue and promotion of multiculturalism.”
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The OIC members abstained from a council resolution on religious freedom, particularly distressed that it guaranteed the right to convert and that it made no mention of protecting religions from “defamation.” The Saudi delegation said it could not “accept texts which go against the Islamic sharia.”
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The OIC, however, has not succeeded in gaining EU or U.S. approval of the “defamation of religions” concept. Without such Western support, passing a binding UN resolution remains elusive. However, OIC states have managed to obtain GA resolutions against “defamation of religions” in every session since the 2005 Mecca summit, and even nonbinding UN resolutions have the potential to be cited by international and national courts and over time enter into international law as “customary” laws.
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The OIC’s decision not to introduce a resolution against defamation of religions in the council’s sixteenth session in 2011 was seen by the UN’s Western bloc as an essential battle won in the struggle to preserve the principle of fundamental freedoms of the individual.

Though defamation of religions resolutions would continue to be adopted in the UN’s foremost human rights body until 2011, albeit with decreasing support, by 2008, the center of gravity in the UN had shifted to favor a religious hate-speech focus. Europe saw resolutions against hate speech as putting the emphasis properly on individuals rather than on religions. The OIC, however, viewed them as a convenient pretext to declare allegedly Islamic institutions off-limits for criticism and thus as a proxy for resolutions against religious defamation.

A new paragraph in the Human Rights Council’s 2008 resolution contained the Orwellian assertion that protecting religions from “contempt” was “an essential element conducive for the exercise by all of the right to freedom of thought, conscience and religion.” The 2008 text also relied on the conflation of racial and religious issues. It argued that a ruling by the Committee on the Elimination of Racial Discrimination permitting bans against “the dissemination of all ideas based upon racial superiority or hatred” should be equally applicable to speech inciting religious hatred. It gave a new mandate to the High Commissioner for Human Rights to seek out best practices among blasphemy laws, which resulted in a finding that, in fact, there is no common practice.
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This was the first such resolution to pass by a plurality rather than a majority.
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In March 2008, the council further circumscribed protection for freedom of expression by adopting, with overwhelming support, an amendment introduced by Egypt (for the Group of African States), Pakistan (for the Organization of the Islamic Conference), and Palestine (for the Group of Arab States).
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This amendment changed the mandate of the Special Rapporteur on Freedom of Opinion and Expression to report on the “abuse” of the right of freedom of expression by an act of racial or religious discrimination.
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The U.S. ambassador stated that the revision “attempts to legitimize the criminalization of expression” and aims to place “restrictions on individuals rather than to emphasize the duty and responsibility of governments to guarantee, uphold, promote and protect human rights.”
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The Canadian delegate likewise argued that the resolution “turns the Special Rapporteur’s mandate on its head.”
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A few months later, Secretary of State Condoleezza Rice stated that the United States was “concerned by efforts to promote a so-called defamation of religions concept … this concept seeks to limit freedom of speech, and that could undermine the standards of international religious freedom.” Following Rice, the U.S. ambassador on international religious freedom, John Hanford, rejected the OIC approach to protecting religions for creating a “chilling effect upon the freedom of people to discuss their beliefs openly, to be critical openly.” Hanford also warned of “cases in certain countries where people have been sentenced for apostasy or blasphemy that drew upon this precedent from a resolution that passed at the UN.”
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The resolution also alarmed the World Association of Newspapers and World Editors Forum, which warned that the council’s “proper role is to defend freedom of expression and not to support the censorship of opinion at the request of autocracies.”
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In 2008, following further controversies over alleged insults to Islam, the office of the UN High Commissioner for Human Rights held an “Expert Seminar” on the links between articles 19 and 20 of the ICCPR.
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The result was an agreement that there were certain acceptable limitations on speech, but there was also disagreement on how extensive these limitations should be. Participants agreed that prohibitions were acceptable in genuine cases of “incitement to discrimination, hostility, or violence,” as provided for in Article 20 of the ICCPR. (This article had been formulated in the 1960s by the Soviet bloc and had been adopted without
any Western support.) The president of the council suggested that common ground could be reached by shifting from “defamation of religions” to “incitement to religious hatred.”
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Even within the West, which opposed the “defamation of religions” concept, there was growing support for shifting the debate over banning religious insults to the framework of hate speech or “incitement.”
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Doudou Diène’s final report thus pronounced that “political and ideological polarization on the question of the defamation of religions is artificial. Indeed, analysis of international, regional, and national human rights instruments shows that provisions against inducement to national, racial or religious hatred are almost universal.”
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The OIC’s head sought to make “it clear that the OIC was not looking for limitation or restrictions of freedom of expression beyond those set by Articles 19 and 20 of the ICCPR.” To further emphasize that the “defamation resolutions” were not of an exceptional nature, the report stressed that “the EU has imposed stringent restrictions on hate speeches.”
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However, on December 10, 2008, four freedom of expression monitors—from the UN, Organization for Security and Co-operation in Europe (OSCE), Organization of American States (OAS), and African Commission on Human and Peoples’ Rights (ACHPR)—adopted an extraordinary joint declaration that emphasized the importance of “open debate about all ideas and social phenomenon in society and the right of all to be able to manifest their culture, religion and beliefs in practice” and lauded the abolition in many countries of laws “used to prevent legitimate criticism of powerful religious leaders and to suppress the views of religious minorities, dissenting believers and non-believers.…” They argued that, although prohibitions on “incitement to hatred, discrimination or violence” were acceptable, “open dialogue that exposes the harm prejudice causes” should be the primary means of combating bigotry. Their declaration pointed out that the “defamation of religions” framework was unacceptable because it “does not accord with international standards regarding defamation, which refer to the protection of reputation of individuals.”
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