Protecting religions from 'defamation': a threat to universal human rights standards.

• Author: Leo, Leonard A.

INTRODUCTION (1)

Over the past decade, countries from the Organization of the Islamic Conference (OIC) have been working through the United Nations system to advance the problematic idea that there should be laws against the so-called "defamation of religions." (2) Although touted as a solution to the very real problems of religious persecution and discrimination, the OIC-sponsored U.N. resolutions on religious defamation instead provide justification for governments to restrict religious freedom and free expression. They also provide international legitimacy for existing national laws that punish blasphemy or otherwise ban criticism of a religion, which often have resulted in gross human rights violations. (3) These resolutions deviate sharply from universal human fights standards by seeking to protect religious institutions and interpretations, rather than individuals, and could help create a new international anti-blasphemy norm.

Since 2008, support at the U.N. for these flawed resolutions has been declining. (4) In fact, in 2010 defamation of religions resolutions received the fewest yes votes and the most no votes ever cast on this issue in both the U.N. Human Rights Council and the U.N. General Assembly, coming within, respectively, four (5) and thirteen votes of defeat. (6) This trend is encouraging. The United States and other U.N. member states that make protecting individual human rights an important objective should now redouble their efforts finally to defeat the defamation of religions resolution at the March 2011 Human Rights Council session.

In addition to seeking a new norm through these resolutions, OIC countries have argued in various U.N. contexts that existing international standards prohibiting advocacy of hatred and incitement already outlaw defamation of religions. (7) The provisions on which they rely--Article 20 of the International Covenant on Civil and Political Rights (ICCPR) and Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)--provide only limited exceptions to the fundamental freedoms of expression and religion. (8) These provisions were intended to protect individuals from violence or discrimination, not to protect religious institutions or ideas from criticism. (9) They should not be expanded to cover alleged religiously defamatory speech. Such an expansion--which unfortunately may have gained support from new language on negative religious stereotyping and incitement in a fall 2009 U.N. Human Rights Council freedom of expression resolution--would undermine international human rights guarantees, including the free of thought, conscience, and religion. It would also undermine the institutions that protect universal human rights worldwide.

1. ANALYSIS

   1. The Flawed Defamation of Religions Concept

      Since 1999, the OIC--a regional organization comprised of fifty-seven nations with Muslim majorities or significant Muslim populations--annually has sponsored resolutions in the U.N. Human Rights Council and its predecessor, the U.N. Commission on Human Rights, calling on U.N. member states to outlaw the so-called defamation of religions. (10) Similar resolutions have been adopted at the U.N. General Assembly each year since 2005. At the Human Rights Council in Geneva, Pakistan has led these efforts; at the General Assembly in New York, Egypt also has played a leading role. (11) The OIC has indicated that the goal of its efforts is the adoption of a binding international covenant against the defamation of religions. (12)

      Although these resolutions purport to seek protection for religions in general the only religion and religious adherents that are specifically mentioned are Islam and Muslims. (13) Aside from Islam, the resolutions do not specify which religions, other than Islam, would deserve protection, nor explain how or by whom such a determination would be made. (14) The resolutions also do not define religiously defamatory speech, or explain who has authority to make that determination. (15) For its part, the OIC appears to consider any speech that the organization, or even a cleric or individual deems critical of or offensive to Islam or Muslims to automatically constitute religiously defamatory speech. (16) This view goes far beyond the existing domestic legal concept of defamation, which protects individuals against false statements of fact that damage their reputations and livelihoods. (17) Implementing the OIC's approach would violate provisions of the Universal Declaration of Human Rights and various human rights treaties that protect, with only narrow exceptions, every individual's right to receive and impart information and speak out. (18)

      In terms of states' practices, there is no universal approach toward defamation of religions. The U.N. High Commissioner for Human Rights conducted a survey in 2008 and found no common understanding of the concept among those countries that said they had laws on the issue. (19) Instead, the report found that the laws surveyed addressed "somewhat different phenomena and appl[ied] various terms such as contempt, ridicule, outrage and disrespect to connote defamation." (20)

      In essence, the defamation of religions resolutions are an attempt to export the repressive blasphemy laws found in some OIC countries to the international level. Under these laws, criminal charges can be levied against individuals for defaming, denigrating, insulting, offending, disparaging, or blaspheming Islam, often resulting in gross human rights violations. (21) In Pakistan, for example, domestic law makes blasphemy against Islam a criminal offense subject to severe penalties, including death. (22) Extremists have abused these broad provisions to intimidate and arbitrarily detain members of religious minority communities, including disfavored minority Muslim sects, and others with whom the extremists disagree. (23) Similarly, unscrupulous individuals have misused them to settle personal scores. (24) Blasphemy allegations in Pakistan, which are often false, have resulted in imprisonment on the basis of religion or belief, vigilante violence, or both. (25) In Egypt, the government has used charges of blaspheming or insulting Islam to imprison purportedly unorthodox Muslims and individuals, including bloggers who have called for political and religious reforms. (26)

      The defamation of religions resolutions commonly have come before the U.N. General Assembly in the fall and the U.N. Human Rights Council in the spring, and they continue to be adopted each year in each body. Since 2008, however, support for these problematic resolutions has eroded. The last six times the resolutions were considered, the votes in favor decreased from a majority to a plurality of member governments. (27) At the March 2008, March 2009, and March 2010 Human Rights Council sessions, as well as in December 2008, December 2009, and December 2010 General Assembly votes, the combined number of no votes and abstentions outnumbered the yes votes, although the resolutions still were approved. (28) In fact, in 2010, at both the Human Rights Council and the General Assembly, defamation of religions resolutions garnered the least support and most opposition this issue has ever received, coming within, respectively, four and thirteen votes of defeat. (29) U.N. representatives from North America and Europe, including the Holy See, have consistently voted or spoken out against the concept behind the resolutions, and Latin American and African countries increasingly are joining this group. (30)

      Notably, in December 2008, the four international experts serving as freedom of expression rapporteurs of four international institutions--Frank La Rue, U.N. Special Rapporteur on Freedom of Opinion and Expression, Miklos Haraszti, Organization for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media, Catalina Botero, Organization of American States (OAS) Special Rapporteur on Freedom of Expression, and Faith Pansy Tlakula, African Commission on Human and Peoples' Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information-issued a joint statement urging international organizations to stop supporting the idea of defamation of religions, because it "does not accord with international standards" accepted by pluralistic and free societies. (31) The U.N. Special Rapporteur on the Freedom of Religion or Belief likewise has spoken out against the concept, pointing out that international human rights law protects individuals, not belief systems, and the individual right to freedom of religion or belief does not include the right to have one's religion or belief be immune from criticism. To the contrary, as the Special Rapporteur has noted, "[t]he recognition, respect and practice of religious pluralism...