ISSUE - Oct 2-3 Consultation - Defamation of Religion, Incitement to Religious Hatred, Freedom of Opinion and Expression

 

THE TANDEM PROJECT

http://www.tandemproject.com.

 

UNITED NATIONS, HUMAN RIGHTS,

FREEDOM OF RELIGION OR BELIEF

 

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STUDY OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS COMPILING EXISTING LEGISLATIONS AND JURISPRUDENCE CONCERNING DEFAMATION OF AND CONTEMPT FOR RELIGIONS

 

Issue: Defamation of religion, incitement to religious hatred, freedom of opinion and expression

 

For: United Nations, Governments, Religions or Beliefs, Academia, NGOs, Media, Civil Society

                                                                                                                                                                             

Review: From the Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General: Study of the United Nations High Commissioner for Human Rights compiling existing legislations and jurisprudence concerning defamation of and contempt for religions.

 

1. In resolution 7/19 on Defamation of Religion, the Human Rights Council urged States to “take actions to prohibit the dissemination, including through political institutions and organizations, of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to racial and religious hatred, hostility or violence.” The vote on this resolution in the seventh session of the U.N. Human Rights Council on 24 March 2008 was highly controversial with 21 in favor, 10 against and 14 abstaining.

 

“82. Further clarity is needed with regard to the legal contours of the demarcation line between freedom of expression and incitement to religious hatred. In order to protect individuals and groups, a better understanding of the permissible limitations to freedom of expression in accordance with international human rights law needs to be developed. OHCHR will therefore organize an expert consultation entitled “Links between Article 19 and 20 of the ICCPR: Freedom of expression and advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence”. The expert consultation will be held from 2 to 3 October in Geneva and is open to the participation of observers such as Member States, United Nations agencies, regional organizations and NGOs. 

 

The Study of the United Nations High Commissioner for Human Rights compiling existing legislations and jurisprudence concerning defamation of and contempt for religions, includes; International Norms and Jurisprudence, Reports and Findings of Special Rapporteurs, Regional Norms and Jurisprudence, National Laws and Jurisprudence and Conclusions. The full report and Resolution 7/19 of the Human Rights Council on Defamation of Religion need to be read before the Experts Consultation.

 

The Special Rapporteur report on Freedom of Opinion and Expression is an important document for the debate on defamation of religion and freedom or opinion and expression. The full report is available below by the link to (A/HRC/7/14). 

 

Here are excerpts from the OHCHR Study.  The Study and Human Rights Council Resolution 7/19 can be opened by the links below. A third Word Document is attached on the U.N. Special Rapporteur Report on Freedom of Opinion and Expression, which refers to interpretations of the link between Article 19 and 20 as one of the issues of the tension.

 

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Link: Paper (A/HRC/9/25) for the ninth session of the Human Rights Council and Expert Consultation on 2-3 October, 2008

 

http://www2.ohchr.org/english/bodies/hrcouncil/docs/9session/A.HRC.9.25_AEV.doc

 

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Link: U.N. Human Rights Council seventh session; Resolution 7/19 on Defamation of Religion.

 

http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_7_19.pdf

 

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The Advanced Edited Version (A/HRC/7/14) of the Special Rapporteur on Freedom of Opinion and Expression for the Seventh Session of the HRC is available by clicking on this link:

 

http://www2.ohchr.org/english/bodies/hrcouncil/docs/7session/A-HRC-7-14.pdf

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Excerpts: Excerpts are presented under the Eight Articles of the 1981 U.N. Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief. Excerpts are presented prior to an Issue Statement for each Review.  

 

International Covenant on Civil and Political Rights (ICCPR)

 

Article 18:

 

1. 1 Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practices and teaching.

 

1. 2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.

 

1. 3 Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others.

 

Article 19:

 

1. Everyone shall have the right to hold opinions without interference.

 

2.  Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

 

3.  The exercise of the rights provided for in the foregoing paragraph carries with it special duties and responsibilities, but these shall be such only as are provided by law and are necessary, (1) for respect of the rights or reputations of others, (2) for the protection of national security or of public order (“ordre public”), or of public health or morals.

 

Article 20:

 

1.  Any propaganda for war shall be prohibited by law.

 

2.  Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

 

 

STUDY OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS COMPILING EXISTING LEGISLATIONS AND JURISPRUDENCE CONCERNING DEFAMATION OF AND CONTEMPT FOR RELIGIONS

 

INTRODUCTION

 

1. In resolution 7/19 the Human Rights Council urged States to “take actions to prohibit the dissemination, including through political institutions and organizations, of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to racial and religious hatred, hostility or violence.”

 

2. In paragraph 16 of that resolution, the Human Rights Council requested the High Commissioner for Human Rights “to report on the implementation of the present resolution and to submit a study compiling relevant existing legislations and jurisprudence concerning defamation of and contempt for religions to the Council at its ninth session.” In accordance with that request, the High Commissioner submits to the Council a report on the implementation of that resolution (A/HRC/9/7), and the present study.

 

BACKGROUND

 

6. Resolution 7/19 follows a series of resolutions on defamation of religions adopted by the General Assembly, the former Commission on Human Rights and the Human Rights Council. The common concern in these resolutions revolve around several related themes, primarily the stereotyping and negative portrayal of religions, in particular Islam, the association of Islam with violence and terrorism in the aftermath of the 2001 terrorist attacks in the United States of America, the dissemination of ideas based on superiority, discriminatory laws, policies and practices that have targeted minority religious groups, and physical attacks on individuals and communities and their properties and places and symbols of worship.

 

7. While these resolutions make reference to “defamation of religions”, it appears that they often use the term in the generic sense to describe some of the above phenomena – notably hostile statements, unfair association with violence, stigmatization, ridicule, insults against religion, attacks, “Islamophobia” – rather than in the strict legal sense. In this context the resolutions perceive defamation in conjunction with the need to combat hatred, discrimination, intimidation, coercion, etc. Thus, paragraphs 8 and 9 of resolution 7/19 urges States “to prohibit the dissemination…of racist and xenophobic ideas and materials aimed at any religion or its followers”, and calls on them to provide “adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from the defamation of any religion”.

 

8. The notion of defamation as is known in many national legal systems is designed to protect individual reputation and image. In its general legal meaning, it refers to an inaccurate statement (oral, written) that is published through various means of communication (printed, audio-visual, electronic) and is intended to or actually causes harm to a person’s reputation. Some national laws require the additional element of negligence or malice in the making of the statement. In general, the sanction for defamation is a civil penalty, although some countries also recognize defamation as a criminal offence.

 

9. Some countries have blasphemy laws which envisage sanctions for profane acts (physical, oral, printed, audio-visual, electronic, etc.). Others have adopted specific defamation of religions laws that extend the concept of defamation to protect religions and, in that sense, regard defamation of religions as essential to the protection of freedom of religion or belief.

 

10. In the framework of international human rights law, the combination of “defamation” with “religion” remains unclear for a variety of reasons. It is within this context that this study is framed around the following questions:

 

(a) To what extent the concept of defamation of religions can be derived from existing international human rights law framework:

 

(b) The scope of existing international human rights law related to religion – namely, the freedom of religion or belief, discrimination on the basis of religion and incitement to religious hatred and violence – and if it sufficiently addresses the phenomena with which the resolutions are concerned:

 

(c) The implications of “defamation of religions” to the international human rights framework, particularly the relationship to freedom of expression and other fundamental human rights.

 

INTERNATIONAL NORMS AND JURISPRUDENCE

 

a. Freedom of religion or belief

 

14. Freedom of religion or belief has received considerable attention since the founding of the United Nations. The United Nations Charter does not explicitly mention freedom of religion or belief; however its human rights provisions provide the normative framework. Since then, many resolutions and the core human rights treaties have been adopted, which deal with freedom of religion or belief directly and indirectly.

 

b. Relations of freedom of religion or belief to freedom of expression and other fundamental human rights and freedoms

 

20. Paragraph 12 of Human Rights Council resolution 7/19 states that freedom of expression is not unlimited. Indeed, ICCPR envisages limitations to freedom of expression, in particular article 19 (3) which provides that certain restrictions may be imposed on freedom of expression in order to protect the rights or reputations of others, national security or public order, public health or morals. However, in general comment No. 10 (1983) on freedom of expression, the Human Rights Committee underlined that restrictions may not put in jeopardy the right itself. The limitations must be “provided by law”, they should be imposed for one of the purposes set out in subparagraphs (a) and (b) of the article, and they must be justified as being “necessary” for one of those purposes.

 

c. Incitement to religious hatred and violence

 

23: In 2006, the High Commissioner for Human Rights submitted a report to the Human Rights Council on incitement to racial and religious hatred and the promotion of tolerance which outlines in detail the international legal framework with regard to incitement to religious hatred and violence (A/HRC/2/6). The report concluded that existing international and regional human rights instruments, primarily ICCPR, ICERD and the three regional instruments, indicate a broad consensus on the law relating to incitement and advocacy or racial and religious hatred and provide a good basis for “legal and policy” responses to the problem of intolerance more generally, and the incitements of hatred and violence in particular” (para.80).

 

d. Intersection of race and religion

 

30. The permissible limitations to freedom of expression are one of the main issues in the discourse on defamation of religions. In paragraph 13 of resolution 7/19, reference is made to general recommendation No. 15 of the Committee on the Elimination of Racial Discrimination which affirms that “the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the freedom of opinion and expression” (para. 4). The resolution asserts that this is equally applicable to the question of incitement to religious hatred.

 

ISSUE STATEMENT: The “Study of the United Nations High Commissioner for Human Rights Compiling Existing Legislations and Jurisprudence Concerning Defamation of and Contempt for Religions” will serve as the basis for an Experts Consultation at the U.N. Human Rights Council on 2-3 October 2008. Permissible limitations to freedom of expression are one of the main issues in the discourse on defamation of religions in the reports of the U.N. Special Rapporteur on Freedom of Opinion and Expression. An operative paragraph from the U.N. Special Rapporteur on Freedom of Opinion and Expression is listed here and his full report and discussion of legal options under Articles 18-20 of the International Covenant on Civil and Political Rights is in the Word Document attached.

 

  • Special Rapporteur Report (A/HRC/7/14) on Freedom of Opinion and Expression: 65. The Special Rapporteur also emphasizes that existing international instruments establish a clear limit on freedom of expression. In particular, the International Covenant on Civil and Political Rights that provides that “any propaganda for war” and “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” The main problem thus lies in identifying at which point exactly these thresholds are reached. The Special Rapporteur underscores that this decision which is ultimately a subjective one, should meet a number of requirements. In particular, it should not justify any type of prior censorship, it should be clearly and narrowly defined, it should be the least intrusive means in what concerns limitations to freedom of expression and it should be applied by an independent judiciary. The Special Rapporteur reiterates that these limitations are designed to protect individuals rather than belief systems, guaranteeing that every person will have all of his or her human rights protected.

 

The U.N. Special Rapporteur is of the opinion that “defamation of religion” is not a legal term and that adequate legislation already exists in the link between Article 19 and Article 20 to protect against incitement to discrimination, a legal term under international law. The key phrase her is a subjective one, “identifying when exactly these thresholds are reached.” The Study cites some U.N. Member States Constitutions and laws that argue for penalties based on defamation of religion, while others, like the United States reservation to Article 20 of the ICCPR will argue the opposite. This tension and debate will be the subject of the Experts Consultation on 2-3 October 2008.

 

  • Article 20: The United States of America, signatory to the International Covenant on Civil and Political Rights, made the following reservation: (1.) That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.

 

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STANDARDS: http://www.tandemproject.com/program/81_dec.htm

 

Submit information under the Eight Articles and sub-paragraphs of the 1981 U.N. Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief by using The Tandem Project Country & Community Database.

 

http://www.tandemproject.com/databases/forms/card.htm

 

The Tandem Project: a non-governmental organization founded in 1986 to build understanding, tolerance and respect for diversity, and to prevent discrimination in matters relating to freedom of religion or belief. The Tandem Project, a non-profit NGO, has sponsored multiple conferences, curricula, reference materials and programs on Article 18 of the International Covenant on Civil and Political Rights – Everyone shall have the right to freedom of thought, conscience and religion - and 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief.

 

The Tandem Project initiative is the result of a co-founder representing the World Federation of United Nations Associations at the United Nations Geneva Seminar, Encouragement of Understanding, Tolerance and Respect in Matters Relating to Freedom of Religion or Belief, called by the UN Secretariat in 1984 on ways to implement the 1981 UN Declaration. In 1986, The Tandem Project organized the first NGO International Conference on the 1981 UN Declaration.

 

The Tandem Project Executive Director is: Michael M. Roan, mroan@tandemproject.com. 

 

Documents Attached:

 

Defamation of Religion - UN Report and Expert Consultation

Freedom of Opinion and Expression - Special Rapporteur Report

 

The Tandem Project is a UN NGO in Special Consultative Status with the

Economic and Social Council of the United Nations