Protection of religion against defamatory speech or protection of free speech against restrictive legislation? In the last decade, this dilemma has caused heated debates in the United Nations, often pitting Western countries, led by the US and the EU, against Muslim-majority countries, under the leadership of the Organisation of Islamic Cooperation (OIC). As such— probably more than any other issue—this conflict has crystallized the normative polarisation between liberal and Islamic approaches to human rights.
Turan Kayaoglu, University of Washington, Tacoma
Marie Juul Petersen, Danish Institute of Human Rights
In 1999, OIC countries introduced the first of a series of resolutions asking governments to combat the defamation of religions. For the OIC, this was a much-needed step in the fight against rising Islamophobia, arguing that defamation of Islam often led to anti-Muslim discrimination. Western states, for their part, considered the resolutions contrary to free speech at best and universalizing blasphemy laws at worst. These states argued that religious people have a right to protection from discrimination and defamation—but religions do not.
After a 12-year long battle, complete with acrimonious annual debates, the OIC gave up the anti-defamation resolution in March 2011. In its place, the organisation presented a consensus resolution at UN Human Rights Council, formulated in cooperation with the US and the EU – Resolution 16/18: Combating Intolerance, Negative Stereotyping and Stigmatisation of, and Discrimination Incitement to Violence, and Violence against Person Based on Religion and Belief".
For its supporters, the resolution was a breakthrough. It avoided the controversial phrase "defamation of religions" and reflected a clear commitment to combat religious intolerance within the framework of international human rights. The resolution situated itself squarely within mainstream international human rights discourse by specifically promoting freedom of expression, freedom of religion, and non-discrimination. More skeptical voices, however, see the resolution as nothing new, arguing that this is just another way for the OIC to push for blasphemy laws and stricter hate speech legislation.
On 19-21 June, 2013 parties to Resolution 16/18 met at the UN in Geneva to discuss implementation. The discussions at this meeting are indicative of the future of the resolution. Is it "a poster child of OIC-US-EU cooperation", as OIC's Secretary General Ekmeleddin İhsanoğlu has said, bridging old divides between the West and the Muslim world? Or will old animosities kill the consensual spirit of the resolution?
Istanbul Process: Two (Half-)Steps Forward and One Step Back?
The Geneva meeting was the third in what has come to be known as "the Istanbul Process", initiated by OIC's İhsanoğlu, former U.S. Secretary of State Hilary Clinton, and EU High Representative for Foreign Affairs and Security Policy Catherine Ashton in order to explore and ensure ways of implementing the resolution. Two previous meetings were held by the US State Department in Washington D.C. (12-24 December 2011) and in Wilton Park, London (3-5 December 2012). These meetings addressed, among other things, strategies to engage religious minorities, training government officials on religious and cultural awareness, and building networks with civil society to promote religious freedom.
At the Geneva meeting, organised by the OIC, three topics were on the agenda: the importance of speaking out against intolerance, inter-faith dialogue, and the criminalisation of hate speech. Discussions on the two former topics bode well for the future of the resolution, echoing a spirit of consensus and mutual agreement. However, the subject of criminalizing hate speech provoked heated debate, invoking old fault lines between the Muslim world and the West and raising questions about the future of the resolution.
Speaking out against Intolerance and supporting Inter-faith Dialogue
There was broad agreement among all states on the necessity for public leaders to speak out against intolerance and hatred. While delegates from Muslim-majority states tended to stress the responsibility of media, those from the Western states emphasised the role of religious, political, and community leaders. Regardless, all agreed that leaders share responsibility in preventing narratives of hatred and intolerance from taking root in their respective societies. As U.S. Ambassador Donahoe mentioned, silence in the face of intolerance and hatred can be perceived as approval. Obama's condemning Islamophobic "the Innocence of Muslims" film and Prime Minister David Cameron's statement that nothing in Islam justifies the killing of soldier Lee Rigby in London were mentioned as admirable examples of state leaders speaking out.
States also agreed on the importance of interfaith and intercultural dialogue to combat religiously motivated hatred, incitement, and violence.. Several delegates raised concerns: the effect of dialogue remains questionable, some groups have been excluded from dialogue projects, and intra-faith dialogue must also be considered. There was broad agreement that dialogue is not the sole solution to religious intolerance but, should be combined with other measures. Also, rather than mere "dialoguing," interfaith service and actions for the common good should be encouraged.
The anti-defamation agenda in disguise?
In contrast to the constructive discussions on leadership and dialogue, the discussion on criminalisation measures took a more confrontational turn, evoking memories of the old times' anti-defamation debates. Although the language of the discussions may have shifted from "defamation" to that of "incitement", the arguments remained much the same, presented by the same parties and – in some cases – even the same individuals. As Michael G. Kozak, Principal Deputy Assistant Secretary from the U.S. Bureau of Democracy, Human Rights and Labor noted, "at this point I think Ambassador Akram, Ambassador Jazairi, Mr. Attiyah and I could play each other's roles effectively since we have memorized each other's talking points." The debate turned on three questions, each in different ways reinforcing the adversarial relations between the US and Europe on one side, and the OIC countries on the other:
Hard or soft measures?
Overall, the discussion revealed a disagreement about the place of criminalisation measures. Are laws the most relevant tool in the fight against intolerance and discrimination based on religion? Or should they be seen as a last resort in cases where softer measures of dialogue, education, and advocacy have not worked?
The US and several European states emphasised their preference for social and cultural measures over legal ones. These states argued that criminalisation is often inappropriate, ineffective, and even counterproductive. "Good speech" is what defeats intolerance and hate, rather than restrictions on speech itself. OIC states, on the other hand, presented criminalisation as "a matter of vital concern", imperative to the full implementation of Resolution 16/18. According to Zamir Akram, who serves as the Permanent Representative of Pakistan to the UN and Coordinator of the OIC Group for Human Rights in Geneva, criminalisation measures were, in fact, the "lynchpin" of the resolution, and garnering support for legal statutes was the main purpose of the Geneva meeting. For him, and other OIC affiliates, criminalisation of intolerant and hateful speech is key both to helping Muslim minorities in the West and to healing the problems between Western and Muslim-majority nations.
"There is no urgent need for new international laws," said Ömür Orhun, the OIC's Special Envoy on Combating Intolerance and Discrimination against Muslims. He continued: "What we need is the implementation of existing national laws, and the introduction of laws in those countries that do not yet have such laws." Supported by Turkey and China, Akram suggested the establishment of an expert group to present guidelines for national legislation. In response, the US and several European countries characterized these efforts as superfluous. These states stressed that the issue had already been discussed in a number of expert meetings organized by OHCHR, resulting in the Rabat Plan of Action.
What constitutes 'incitement to imminent violence'?
These discussions on the place of criminalisation measures pointed towards more fundamental disagreements about the substance of such measures. What constitutes incitement to imminent violence? And how are states to balance the protection of individuals from such incitement to violence with the right to freedom of expression?
For many OIC countries, the protection of religious individuals (and for some, also religious personalities and symbols) must be prioritised over the protection of freedom of expression. As noted by Ambassador Idriss Jazairi, former Permanent Representative of Algeria to the UN in Geneva: "The main danger is not restrictions of freedom of speech – the danger is impunity from hate speech." Referring to Article 20 of the International Covenant on Civil and Political Rights (ICCPR), some OIC countries, led by Ambassador Akram of Pakistan, stated that criminalisation should not only include the incitement to imminent violence, but also the advocacy of hatred that constitutes an incitement to discrimination, hostility, or violence.
To support their calls for such broad criminalisation measures, some OIC representatives referred to existing anti-Semitism legislation in several European states. "We need to learn from the countries that have Holocaust laws," Akram stated. Jazairi added: "If European states can criminalise anti-Semitic expressions, why can't they criminalise Islamophobic expressions?" He pointed to OSCE's Berlin Declaration as an example of this skewed focus, asking why there was a policy recommendation on anti-Semitism, but not on Islamophobia.
However, the US argued that the freedom of expression must be prioritised over the protection of religious individuals. "We have had blasphemy laws, we have had prohibitions on criticism of government, and we learned the hard way," said Kozak. Building on First Amendment jurisprudence, Kozak said, "When you close venues of peaceful dissent, the solution becomes violence." In this perspective, incitement to violence should only be criminalised in situations in which the statements are "intended to produce violence, likely to do so, and likely to occur imminently." "Article 20 does not mandate banning of speech solely because it causes hatred, nor because it criticises or misrepresents a religion," Oklahoma University Professor of Law Evelyn Aswad noted. In effect, she continued: "There is no human right not to be offended." Supported by several European countries, she also emphasised the importance of reading Article 20 in conjunction with Articles 18 and 19 of the ICCPR which limits potential restrictions to free speech.
Islamophobia as today's main challenge?
Perhaps more problematic than this principled disagreement about the nexus between the freedom of expression and the protection of religious minorities is the disagreement about the concrete focus of thee efforts to combat religious intolerance. Is this primarily a fight against Islamophobia in Europe and the US? Or should the focus also include the discrimination suffered by Copts in Egypt, Rohingya in Burma, Shi'ites in Pakistan, and atheists in Saudi Arabia?
According to Pakistan, Algeria and other OIC countries, Muslims are the main victims of discrimination in contemporary society, something that incidents such as the Utøya massacre in Norway, the Swiss ban on minarets, and the "Innocence of Muslims" movie produced in the United States illustrate. The US, together with the EU and several individual European states, acknowledged the existence of such Islamophobic trends in the West and provided numerous examples of initiatives taken by Western states and NGOs to counter these trends. These states also called on the OIC states to broaden their perspective and reflect on their own issues related to the treatment of religious minorities. Apart from the Pakistani ambassador's brief acknowledgement of the "tremendous challenges" in his own country, however, the majority of OIC countries remained conspicuously silent on this issue.
Similarly, several OIC states called for the establishment of a UN observatory to monitor the implementation of Resolution 16/18. However, thus far only six OIC countries have reported on their implementation of Resolution 16/18. Some of the most eager advocates of a UN observatory—Pakistan, Egypt, and Algeria—have yet to report on their implementation of the resolution, making such calls for an observatory at best premature, and at worst hypocritical. Russia, among others, noted that the OSCE already monitors violations in Europe, North America and Central Asia, suggesting that the OIC should mirror this exercise in its own member states. OIC representatives had no comments about this approach.
In its invitation to the third Istanbul meeting in Geneva, the OIC noted the importance of this meeting "to attach equal importance to interests of and concerns on all sides." Despite such good intentions, OIC member states did not show a willingness to listen to the interests and concerns of others. There was little self-criticism and introspection on the part of the OIC states.
Perhaps more than the disagreements about the role and substance of criminalisation measures, the unwillingness on the part of the OIC states to engage in real dialogue presents the most serious threat to the realisation of Resolution 16/18. Disagreements, even fundamental ones, can be overcome and compromises can be found – but only if the parties enter into the discussion with a willingness to listen, learn, and look inward. Promisingly, there are people in the OIC who want to do just that. In a forthcoming article, Ufuk Gökçen, the OIC's Permanent Representative to the UN in New York, writes that "although concerns with regard to Islamophobia are quite legitimate and warranted, fairness in treating all sorts of injustices and discrimination with the same urgency and care would bring more credibility to Muslim activists and communities."
Other OIC representatives have also pointed to the need for introspection and self-criticism among OIC member states, expressing hopes that the organisation's recently established Independent Permanent Human Rights Commission will facilitate such a process. As the commission's chairwoman, Siti Ruhaini Dzuhayatin has noted, the commission could be a forum for the exchange of experiences and best practices among OIC member states. If Resolution 16/18 is to live up to the OIC's description of it as "a common platform (...) far from politicisation and polarisation", the organisation must show leadership. A good start would be encouraging more reflective voices such as these to speak out rather than allowing a handful of spoiler states to set the agenda.
The problem is not about the negative attitude of all 57 member states of the OIC as a bloc trying to be narrow minded or with double standards, but in the absence of interest from the majority of the member states, a few are finding space to steer the debate. Only with introspection on the part of OIC-members and bold leadership on the part of the OIC headquarters, can the Istanbul process become the poster child of cooperation and dialogue that Secretary General İhsanoğlu hopes it will become.