by Andrew Smith, Legal Officer at ARTICLE 19
Last week’s appalling attack against journalists and police officers at the satirical newspaper, Charlie Hebdo, and the cascade of comment and counter-comment that has followed, remind us once again of both the importance of, and the sensitivities that surround, the relationship between freedom of expression, freedom of religion or belief, and non-discrimination.
Identifying and understanding the contours of that relationship has always been a deeply divisive issue at the United Nations, the only forum where all members of the international community can come together to debate such matters. ARTICLE 19 has long argued that these rights are mutually interdependent and reinforcing. The Universal Rights Group’s recent report on combatting religious intolerance lays out the history of attempts, at the UN Commission on Human Rights and, since 2006, at the UN Human Rights Council (the Council), to grapple with matters of freedom of religion or belief, freedom of expression, religious intolerance and stigmatisation, and incitement to hostility, violence or discrimination.
Against this background, the adoption, in 2011, of Council resolution 16/18 on ‘combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence, and violence against persons based on religion or belief’ was a landmark success for the international community. The resolution – carefully negotiated by Pakistan, Turkey, the UK and the US – was hailed as a ‘triumph of multilateralism’ by then OIC Secretary General, as it managed to reconcile the increasingly polarised approaches of the West and the OIC in approaching the issue of religious intolerance, replacing calls (from the OIC) to combat the deeply problematic concept of ‘defamation of religions’ with commitments to address religious intolerance through promoting the related rights to freedom of expression, freedom of religion or belief, and non-discrimination. The resolution, in its in-built action plan, calls on states to, inter alia:
- Encourage the creation of collaborative networks to build mutual understanding promoting dialogue and inspiring constructive action;
- Create an appropriate mechanism within governments to, inter alia, identify and address potential areas of tension between members of different religious communities, and assisting with conflict prevention and mediation;
- Speak out against intolerance, including advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence;
- Recognise that the open, constructive and respectful debate of ideas can play a positive role in combating religious hatred, incitement and violence;
- Encourage the representation and meaningful participation of individuals, irrespective of their religion in all sectors of society;
- Adopt measures to criminalise incitement ‘to imminent violence’ based on religion or belief.
While consensus on resolution 16/18 remains intact (with subsequent annual resolutions – 19/25, 22/31, 25/34 – passing by consensus), to ensure its effective implementation, further work is urgently required at international and regional levels to deepen states’ understandings of the international human rights standards that underpin it, which often appear divided.
The scope of protection that should be afforded to the right to freedom of expression remains one of the most divisive issues at the Council. Initiatives to give strong recognition to this core right are resisted by states preferring to push for greater control over offensive or intolerant expression. In particular, these efforts to qualify freedom of expression often misrepresent the scope of article 20(2) of the ICCPR, which requires states to prohibit any advocacy of national, racial or religious hatred constituting incitement to hostility, discrimination or violence (‘the obligation to prohibit incitement.’) ‘Responsibilities’ are increasingly being emphasised, while ‘rights’ are abrogated with deliberate purpose.
The Rabat Plan of Action (adopted on 5 October 2012), drawing on the work of the Treaty Bodies and a series of expert seminars convened by OHCHR, provides a useful framework for understanding the obligation to prohibit incitement, and a blue print for its implementation in line with international human rights standards. Its significance in this regard has been recognised in recent iterations of resolution 16/18.
The Rabat Plan of Action advances an understanding of the obligation to prohibit incitement that regards proscription of expression constituting incitement as serving a very limited role – essentially as an act of last resort – and stresses that there must be sufficient safeguards against abuse of such prohibitions. Instead, the Rabat Plan of Action focuses on promoting a climate of free and open discourse to prevent against incitement, recommending the legislative, jurisprudential and policy responses required of states to increase tolerance.
Several points of principle must be kept in mind when understanding both resolution 16/18 and the relationship between articles 19 and 20(2) of the ICCPR, in particular that:
- Any prohibition on incitement must meet the three-part test set out in article 19 (3) of the ICCPR;
- Only the most severe forms of incitement warrant restrictive measures on expression, and only in the most extreme cases is criminalisation compatible with international human rights law. The Rabat Plan of Action advances a six-part test for use by prosecutors and judiciary for identifying the most serious forms of incitement that may warrant sanctions;
- Blasphemy laws are unproductive as they censure inter-religious dialogue and healthy debate about religion. International human rights law does not protect religions as such, or shield the feelings of believers from offence or criticism, and therefore laws on blasphemy must be repealed;
- It is impermissible to abuse prohibitions on incitement as a pretext to curtail criticism of the state, expressions of protest or dissent, or open debate, including in relation to politics and religion.
UN Special Procedures have relied extensively upon the Rabat Plan of Action in elaborating recommendations to combat incitement, and it has been incorporated into the guidance of the CERD Committee. States should closely examine the Rabat Plan of Action in conjunction with these reports and further guidance, and the recommendations should inform domestic action as well as inter-governmental discussions on 16/18 at the Council and through the Istanbul Process (an inter-governmental 16/18 implementation mechanism).
In the last week we have seen many states officially condemn the attacks on Charlie Hebdo while invoking the importance of freedom of expression. However, many of these same states maintain laws that criminalise blasphemy, insult, and other forms of offensive expression that do not meet the Rabat threshold, and apply these laws selectively, often to punish minority, dissenting or unpopular viewpoints. Following the Charlie Hebdo murders and with the guidance of resolution 16/18 and the Rabat Plan of Action, states should pause to reflect on how consistently their own legal frameworks protect offensive or unpopular speech. Engagement with civil society is essential to examine how laws and policies should be reformed to ensure robust protection of freedom of expression, freedom of religion or belief, and non-discrimination for all people.
At the regional level, initiatives such as the development by the League of Arab States of a ‘model law on defamation of religion’ go directly against the spirit of resolution 16/18, underlining how fragile and superficial consensus on resolution 16/18 really is. At the same time, regional instruments in place in the European Union, and developed recently through the Organisation of American States, do not fully comply with resolution 16/18 and the high threshold that should be required for restricting speech. States must seek consistency between international and regional efforts to combat intolerance and promote open space for dialogue.
At the same time, neither resolution 16/18 nor the Rabat Plan of Action should be considered exhaustive enumerations of international standards in this field or the measures states must take to combat intolerance. The scope of both documents is limited by the contexts they respond to – dealing together only with religious, racial and national intolerance, and arguably not sufficiently addressing all forums where intolerance may be manifested. Renewed debate on resolution 16/18 should also consider how to address these gaps.
Many forms of intolerance motivated from prejudice on protected grounds recognised under international human rights law, including sex, sexual orientation or gender identity, age or disability, are not dealt with in resolution 16/18 or the Rabat Plan of Action. A progressive reading of the ICCPR, in particular its provisions on non-discrimination and equality, requires states to take all forms of intolerance, and advocacy of all discriminatory hatred constituting incitement to hostility, discrimination or violence, equally seriously.
Andrew Smith (Legal Officer, ARTICLE 19)