Statement Opposing “Defamation of Religions” Resolution in the UN General Assembly - October 2009

29 October 2009

The Center for Inquiry is an NGO in Special Consultative Status with the Economic and Social Council of the United Nations. We wish to express our strong opposition to the proposed "Combating the Defamation of Religions" resolution backed by the Organization of the Islamic Conference (OIC), which the Third Committee will consider in the coming weeks.

The "defamation of religions" resolution would subvert longstanding principles of human rights law by empowering those who seek to silence or intimidate religious dissidents and human rights activists. The resolution poses a direct threat to the guarantees of freedom of speech and belief found in the Universal Declaration of Human Rights. As noted by the Special Rapporteur on freedom of religion or belief, Ms. Asma Jahangir, UN resolutions targeting "defamation of religions" can be used to legitimize anti-blasphemy laws that "punish members of religious minorities, dissenting believers and nontheists or atheists."[1]

Earlier this month, the Human Rights Council wisely rejected the concept of "defamation of religions" by omitting this term from a compromise resolution on freedom of opinion and expression. We urge that the Third Committee likewise reject this misguided concept in favor of other, less problematic resolutions of the values of freedom of expression and equality of citizens.

1. Human Rights Law Protects Individuals, Not Religious Ideas.

The "defamation of religions" resolution is premised on an expansive right of citizens not to be insulted in their religious feelings, and a right to respect for religious beliefs, that have no grounding in international human rights law. International human rights law guarantees freedom of religious exercise, not freedom from insult; it guarantees nondiscrimination for individual believers, not shelter from criticism for belief systems. Existing legal instruments, such as Article 20 of the International Covenant on Civil and Political Rights (ICCPR), already protect religious believers against expression that constitutes incitement to discrimination, hostility and violence. To go further would mean protecting the contents of religious belief systems.

For these reasons, UN experts overwhelmingly agree that the concept of "defamation of religions" is not a proper legal instrument with which to address the problem of discrimination based on religion or belief.[2] The Special Rapporteur has recognized the importance of shifting away from the idea of "defamation of religions" toward the legal concept of "incitement to national, racial and religious hatred, hostility or violence," which is grounded in international legal instruments.[3] Indeed, earlier this month the Human Rights Council adopted a compromise resolution on freedom of opinion and expression proposed by Egypt and the United States, which omits the problematic concept of "defamation of religions." In addition, an alternative resolution on "eliminating all forms of intolerance and of discrimination based on religion or belief" has again been introduced on the floor of the General Assembly. The alternative resolution already addresses the issue of "incitement" on the basis of well-established international legal concepts, without recourse to the problematic idea of "defamation of religions."

2. The Resolution Discriminates Against Religious Minorities, Religious Dissidents, And Non-Believers, In Violation Of International Human Rights Law.

Any protection of religious believers must not discriminate against nonbelievers, religious minorities, and religious dissidents. Their right to criticize and dissent from religious belief must be protected. For example, the European Court of Human Rights case law applying the European Convention for the Protection of Human Rights and Fundamental Freedoms Convention rightly holds that religiously offensive expression must be addressed in a manner that does not constitute discrimination against religious nonbelievers. The Court has affirmed the value of pluralism and religious dissent, for example, by recognizing that Jehovah's Witnesses' right to manifest their religion entails a right to proselytize.[4] The free interplay of ideas on religious matters may include criticism and even hostility toward religious beliefs: "Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith."[5]

The UN Special Rapporteur on freedom of religion or belief has noted that laws protecting religious citizens qua religious are inherently discriminatory against atheists, non-theists, and religious skeptics, in that they protect religion as opposed to belief or conscience.[6] Any protection against religious discrimination should be understood to preclude provisions against incitement that would extend a protection to believers, without extending the same to nonbelievers and religious dissenters.

3. Other Legal Approaches Protect Individual Believers Without Stifling Free Expression And Criticism Of Religious Belief Systems.

Other, alternative approaches to protecting individual religious believers make no mention of the misguided concept of "defamation of religions." For example, a resolution on "eliminating all forms of intolerance and of discrimination based on religion or belief" has again been introduced on the floor of the General Assembly. It addresses the issue of "incitement" to religious hostility, hatred or violence on the basis of well-established international legal concepts, without recourse to the problematic idea of "defamation of religions."

The United Kingdom's Racial and Religious Hatred Act of 2006 provides an additional example of a more satisfactory resolution of the values of freedom of expression and equality of citizens. After considering but rejecting an earlier draft of the law, which would have criminalized expression that was considered abusive or insulting, the House of Commons accepted a final version that criminalized only threatening expression. It also applied only to acts intended to create hatred, not to mere recklessness. In addition, the Act contains a provision to reinforce freedom of expression:

Nothing in the Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytizing or urging adherents of a different religion or belief system to cease practicing their religion or belief system.[7]

In keeping with its obligations under international law, the U.K. protects its individual citizens-no matter what their religious persuasion-from intentional incitement that places them in danger of harm. Meanwhile, it has repealed its ancient blasphemy law, which for many had become an emblem of religious bias at the heart of government.

4. Recommendations

The Center for Inquiry submits that it is possible to protect individual religious believers from discrimination without shielding religious belief systems from criticism, and without threatening the rights of religious dissidents, religious minorities, and nonbelievers. To that end, we recommend the following:

  1. Rather than hewing to the misguided and problematic idea of preventing "defamation of religions," draw on the legal concept of "incitement to national, racial and religious hatred, hostility or violence," which is grounded in existing international legal instruments.[8]
  2. Ensure that any protection of religious believers against incitement must equally protect nonbelievers, who may be the targets of hateful expression on the basis of their disbelief or dissenting belief.
  3. Stipulate that protections against incitement must not restrict proselytizing, discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse.


Notes:

[1] Report of the Special Rapporteur on freedom of religion or belief, on elimination of all forms of religious intolerance (Ms. Asma Jahangir), U.N. Doc. A/62/280, para. 76.

[2] Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Doudou Diène, on the manifestations of defamation of religions and in particular on the serious implications of Islamophobia on the enjoyment of all rights, A/HRC/9/12, 2 September 2008, para. 13, 65.

[3] Statement to the Human Rights Council Ninth Session by Mr. Githu Muigai, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Genève, Palais des Nations, 19 September 2008.

[4] Erbakan v. Turkey, 6 July 2006, Application No. 59405/00. The Court commented: "freedom of thought, conscience and religion is one of the foundations of a ‘democratic society' within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, skeptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it." (para. 17).

[5] Otto-Preminger v. Austria, 19 ENRR 34, E Com HR, para. 47 (1994).

[6] Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Ambeyi Ligabo, UN Doc. A/HRC/7/14, 7 March 2008.

[7] Racial and Religious Act of 2006, S 291.

[8] The concept of "incitement" is not clearly defined in international law. The Center for Inquiry takes issue with European Court of Human Rights decisions restricting speech in order to protect citizens from feeling "insulted" in their religious feelings (see, e.g., Otto-Preminger, supra note 5). We recommend instead that any UN resolutions addressing "incitement" should draw instead on the tradition found in the Court's holdings in Erbakan (see supra note 4) and in Jersild v. Denmark (23 September 1994, Application No. 15890/89). The Court's hodings in these cases suggest that the following are necessary and jointly sufficient conditions for establishing "incitement": (a) intention to encourage discrimination, hostility, or violence; and (b) actual risk or imminent danger of harm. Note that ICCPR Article 20(2) includes a criterion of intent, in its focus on "advocacy" of incitement.