Source: Policy Review (Originally published by Hoover.org)
Date: 2011-2012
Editor: Jacob Mchangama
The Sordid Origin of Hate-Speech Laws
by Jacob Mchangama
Thursday, December 1, 2011
All western european countries have hate-speech laws. In 2008, the eu adopted a framework decision on “Combating Racism and Xenophobia” that obliged all member states to criminalize certain forms of hate speech. On the other side of the Atlantic, the Supreme Court of the United States has gradually increased and consolidated the protection of hate speech under the First Amendment. The European concept of freedom of expression thus prohibits certain content and viewpoints, whereas, with certain exceptions, the American concept is generally concerned solely with direct incitement likely to result in overt acts of lawlessness.
Yet the origin of hate-speech laws has been largely forgotten. The divergence between the United States and European countries is of comparatively recent origin. In fact, the United States and the vast majority of European (and Western) states were originally opposed to the internationalization of hate-speech laws. European states and the U.S. shared the view that human rights should protect rather than limit freedom of expression.
Rather, the introduction of hate-speech prohibitions into international law was championed in its heyday by the Soviet Union and allies. Their motive was readily apparent. The communist countries sought to exploit such laws to limit free speech.
As Americans, Europeans and others contemplate the dividing line emerging on the extent to which free speech should be limited to criminalize the “defamation of religions” and “Islamophobia,” launched by the member states of the Organization of the Islamic Conference (oic) since 1999, they should bear this forgotten history in mind. However well-intended—and its initial proponents were anything but well-intended—the Western acceptance of hate-speech laws severely limits the ability of liberal democracies to counter attempts to broaden the scope of hate-speech laws under international human rights law, with potentially devastating consequences for the preservation of free speech.
Freedom of expression and hate speech
The (nonbinding) universal Declaration of Human Rights (udhr) adopted in 1948 does not include an explicit duty to prohibit hate speech. Article 19 simply secures “freedom of opinion and expression.” However, the drafting history shows that the issues of hate-speech regulation and restrictions on free speech were frequently discussed. During the negotiation of Article 19, the drafters faced the challenge of whether, and if so to what extent, freedom of expression should tolerate even intolerance.
The majority of states favored a robust protection of free speech such as that set out in a U.S. proposal (un Doc. e/cn. 4/21), which read “there shall be freedom of speech, of the press and of expression by any means whatsoever.” However, the Soviet Union continuously proposed various amendments aimed at prohibiting expressions of intolerance.
The first uk proposal on the wording of an article aimed at securing freedom of expression recognized, like the Soviet proposal, the possibility for states to limit this right, in the interests of national security, against incitement to violence and disorder and obscene publications, whereas the uk proposal expressed doubts about the possibility of including publications aimed at suppressing human rights. But the uk did recognize a danger that
these words would afford a wider power for the limitation of freedom of publication than is necessary or desirable,” they found “that it would be inconsistent for a Bill of Rights whose whole object is to establish human rights and fundamental freedoms to prevent any Government, if it wished to do so, from taking steps against publications whose whole object was to destroy the rights and freedoms which it is the purpose of the Bill to establish.
At first glance this proposal may seem wholly reconcilable with the efforts of the Soviet Union. Yet two elements of the uk position differed crucially from the Soviet one. First, the uk stated that “the right of Governments to impose the necessary restrictions . . . is to be interpreted as strictly confined to such publications as advocate the use of violence,” and second, that “no Government is obliged by the Bill to make use of the powers of limitation.” In other words, the limitations on free speech advocated by the uk were, first, with a few exceptions, dependent on the advocacy of violence, and thus mere expressions of intolerance would not in themselves be punishable, and, second, held that there should be no human rights obligation to prohibit such expression.
The debate in the drafting committee led to the adoption of two articles concerning freedom of thought and expression, neither of which mentioned any limitations or restrictions on this fundamental right. These two articles were passed on to the Sub-Commission on the Freedom of Information, which was also asked for advice and to “consider the possibility of denying this freedom to publications and other media of public expression which aim or tend to inflict injury, or incite prejudice or hatred, against persons or groups because of their race, language, religion or national origin.” Nevertheless, none of the proposals submitted to the Sub-Commission by the uk and U.S. experts contained any restrictions on freedom of speech. The work in the Sub-Commission led to two variations of limiting clauses, one referring to “the rights of others” and the other referring to “liability only for the abuses of this freedom in cases determined by the law of nations” (un Doc e/cn.4/Sub.1/sr.27). The Czechoslovakian and the Soviet experts were the only ones to oppose both of these limitation clauses, because they did not find the clauses sufficiently far-reaching. Despite opposition, including from the French delegate, the following vote in the Sub-Commission deleted, by a majority of eight votes, any reference to a limitation clause.
Despite the Sub-Commission’s rejection of a limitation clause, the Soviet delegates did not give up their effort to limit the substantive rights set forth in the udhr and in particular on freedom of expression. But the Soviet efforts to restrict Article 19 were rejected in the Third Committee, as several Western and non-Western countries worried that “fascism,” which the Soviet proposal aimed to prohibit, could not be defined. The Soviet delegate dismissed these doubts and explained that fascism could be defined as “the bloody dictatorship of the most reactionary section of capitalism and monopolies.” The udhr should guard against the fascists existing in all European countries except the “peoples’ democracies” (i.e., the communist countries). As pointed out by Johannes Morsink, this highly politicized perspective clearly demonstrated that the Soviet proposal would be targeted not just at Nazism but also against agitation in favor of capitalism and liberal democracy, and in all likelihood against any other political ideology than the supposed real democracy of communism. Accordingly, the proposal was defeated by a majority in the Third Committee and again at the General Assembly proper by the intervention of the U.S. representative, and chairman of the Commission on Human Rights, Eleanor Roosevelt.
The Soviet proposal would be targeted not just at Nazism but against agitation in favor of capitalism and liberal democracy.
Although Article 19 of the udhr does not contain a specific limitation clause, it is still possible to restrict freedom of expression pursuant to general limitation clauses contained in the udhr. Article 7 ensures equality before the law and protects specifically against incitement to discrimination, while Article 29 includes a general limitation clause according to which the rights in the udhr may be limited, inter alia, for the purpose of securing due recognition and respect for the rights and freedoms of others.
The drafting of Article 7 started in the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. The Soviet Union presented a proposal that included an obligation to prohibit “Any advocacy of national, racial, or religious hostility or of national exclusiveness or hatred and contempt, as well as any action establishing a privilege or a discrimination based on distinctions of race, nationality, or religion constitute a crime and shall be punishable under the law of the state.” The U.S. and Belgian experts vociferously opposed this proposal and sought to prevent a vote upon it. However, France came up with an extensive proposal requiring states to punish infringements of the principle of nondiscrimination. Ultimately Australia and China presented a draft compromise provision that sought to condemn only incitement to violence against minorities, which was adopted with ten votes and one abstention in the Sub-Commission.
Despite the adoption of this compromise, the Soviet delegate continued the fight for limiting freedom of expression in the Working Group of the Human Rights Commission. The Soviet delegate held a speech in which he declared that without a prohibition against hate speech “any Declaration would be useless.” This led to a reiteration of the above-mentioned Soviet proposal on Article 7, which was rejected, though very narrowly this time, with two votes to two, with two abstentions. During the second session of the Human Rights Commission, the Soviet delegate tried once more to submit the proposal, and this time the Belgian representative took it into consideration. He rejected the Soviet proposal but amended the current version of Article 7 with the phrase “and against any incitement to such discrimination,” which was adopted with a great majority.
However, in the third session of the Human Rights Commission, the British and Indian delegates jointly proposed to delete the prohibition against incitement to discrimination since “the United Kingdom, feeling morally bound to carry out the provision of the Declaration, would be obliged to pass laws which experience had shown were neither necessary nor desirable.”
Countries supporting the British/Indian stand included the U.S., while the French representative strongly favored a prohibition against incitement to discrimination. He was joined by, inter alia, the delegation from Yugoslavia, who felt that “incitement to discrimination should be explicitly forbidden.”
The dominant force behind the attempt to adopt an obligation to restrict freedom of expression was the Soviet Union.
When the matter came before the Third Committee of the United Nations General Assembly, the controversial character of the question of incitement seemed to have disappeared. The Belgian amendment was adopted with an overwhelming majority, 41 votes to three, with two abstentions, and Article 7 as a whole was adopted, 45 votes for to zero against, at the General Assembly. It is indisputable that the obligation to protect against incitement to discrimination may invite restrictions on freedom of expression. However, there are real differences in emphasis between the original Soviet proposal and what was adopted by the Third Committee. In its final version, Article 7 protects against incitement to discrimination, while the ussr had sought to prohibit incitement. Protection against incitement to discrimination does not necessarily entail a prohibition against certain forms of speech. The uk representative underlined this difference by stating that “the State should not be regarded as limiting the rights of individuals but as promoting the rights of all.” Accordingly, the protection against incitement to discrimination could plausibly be undertaken with alternative means to criminal law such as education, information, awareness campaigns, etc.
The drafting history of the protection of the freedom of expression in the udhr does not leave any doubt that the dominant force behind the attempt to adopt an obligation to restrict this right under human rights law was the Soviet Union. On the other hand, led by the U.S. and uk, the vast majority of Western democracies, albeit with differences in emphasis, sought to guarantee a wide protection of freedom of expression and in particular to avoid any explicit obligation upon states to restrict this right.
ICCPR
As opposed to the udhr, the International Covenant on Civil and Political Rights (iccpr) is a legally binding human rights convention, currently ratified by some 167 states. The iccpr was adopted in 1966 and includes a right to freedom of expression in Article 19, but also an obligation to prohibit hate speech in Article 20 (2): “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
The adoption of Article 20 was highly controversial and was preceded by protracted and heated negotiations. Taking into account the differences between liberal democratic and communist countries during the drafting of the udhr it is not surprising that the question of whether to adopt a prohibition against hate speech came to the fore with new and increased emphasis during the negotiations of the iccpr. Indeed, the drafting history of the iccpr echoes and shows more sharply the dividing lines already drawn between primarily Western and communist states, and their respective allies, on this crucial matter.
The first draft was limited to the prohibition of “any advocacy of national, racial, or religious hostility that constitutes an incitement to violence.” However, a number of countries led by the Soviet Union were adamant that incitement to violence was insufficient, and sought a broader prohibition against “incitement to hatred.” Poland expressed dissatisfaction with a provision only prohibiting incitement to violence, since it did not tackle “the root of the evil,” and worried that freedom of expression could be abused and “contribute decisively to the elimination of all freedoms and rights.” The Yugoslav representative thought it important to “suppress manifestations of hatred which, even without leading to violence, constituted a degradation of human dignity and a violation of human rights.”
Proponents of hate-speech prohibitions mainly justified the need for Article 20 with the recent memory of World War II and the Holocaust, but as Stephanie Farrior points out, with the passing of time, colonialism and apartheid were also used as justifications for prohibiting racial and religious hatred. The opponents of Article 20 pointed to the inappropriateness of such a prohibition in a human rights convention, to the arbitrariness of the terms “hatred” and “hostility,” and to the risk of undermining freedom of expression. Eleanor Roosevelt found the language “extremely dangerous” and warned against provisions “likely to be exploited by totalitarian States for the purpose of rendering the other articles null and void.” She also feared that the provision “would encourage governments to punish all criticism under the guise of protecting against religious or national hostility.” Roosevelt’s concern was shared by, among others, the five Nordic countries. Sweden argued that “the effective prophylaxis lay in free discussion, information, and education,” and that “fanatical persecution” should be countered with “free discussion, information and debate”. Australia warned that “people could not be legislated into morality.” Furthermore, it noted that “the remedy might be worse than the evil it sought to remove.” The uk representative stated that “the power of democracy to combat propaganda lay . . . in the ability of its citizens to arrive at reasoned decisions in the face of conflicting appeals.” When challenged by the Soviet Union, the uk representative pointed out that during World War II, Hitler’s Mein Kampf had not been banned and was readily available in the uk, and that its government “would maintain and fight for its conception of liberty as resolutely as it had fought against Hitler.”
The states where criticism of totalitarian ideology was prohibited were the ones that internationalized hate-speech laws.
It has been argued that the Western opposition to the prohibition against hate speech in Article 19 was disingenuous, given that the Allied Powers had imposed obligations not to permit fascist organizations and to prohibit hostile propaganda in peace treaties with countries such as Hungary, Bulgaria, Finland, Italy, and Romania in the late 1940s, as well as in the 1955 State Treaty with Austria.
However, these obligations are easily distinguishable from Article 20 as they were not included in human rights conventions aiming at universal application and related to the most exceptional of circumstances in countries that had been led by authoritarian regimes and thus had little tradition of liberal democracy. Moreover, Eleanor Roosevelt expressed regret at the inclusion of such language in peace treaties as by 1949 they had already served as a justification for repressive measures by Hungary, Romania, and Bulgaria.
When the current wording of Article 20 was put to a vote in the Third Committee of the General Assembly, it was adopted with 52 votes in favor, nineteen against, and twelve abstentions. Those in favor were primarily the communist states of Eastern Europe, as well as non-Western countries with very questionable human rights records such as Saudi Arabia, Haiti, Sudan, and Thailand. The nineteen countries that voted against included almost all Western liberal democracies — such as the United States, United Kingdom, Canada, Australia, New Zealand — the five Nordic countries, the Netherlands, and Ecuador, Uruguay, Japan, Malaysia, and Turkey. Eighteen countries (including the U.S.) entered reservations to Article 20 upon ratification. The voting record reveals the startling fact that the internationalization of hate-speech prohibitions in human rights law owes its existence to a number of states where both criticisms of the prevalent totalitarian ideology as well as advocacy for democracy were strictly prohibited. Moreover, the grandiose arguments these states advanced in favor of Article 20 seem — at best — highly disingenuous considering the systematic official propaganda of the communist states.
icerd
In 1965, the un General Assembly adopted the International Convention for the Elimination of all Racial Discrimination (icerd). It was primarily a reaction to a wave of anti-Semitic vandalism in Germany and the fight against colonialism and apartheid.
While icerd was adopted prior to iccpr, its provisions were drafted after the adoption of iccpr Article 20. According to Article 4 (a) the ratifying States “Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination.”
These obligations must be fulfilled “with due regard” to freedom of expression, but this provision is still substantially more far-reaching than iccpr Article 20, since it includes “all dissemination of ideas” and requires the criminalization, rather than the mere prohibition, of hate speech. This interference in the freedom of expression was one of the most controversial provisions in the treaty, and, like iccpr Article 20, it was subject to several negotiations that revealed a split between countries in the Western camp (supported by Latin America) and those in the non-Western camp. The first debate on Article 4 was based on two drafts, a U.S. proposal and a Soviet/Polish proposal.
Natan Lerner has described how, as with the iccpr, the U.S. sought to achieve support for a proposal that would criminalize incitement to racist hate speech “resulting in or likely to result in violence” rather than incitement to racial hatred. However, the Soviet/Polish proposal would, inter alia, “prohibit and disband racist, fascist and any other organization practicing or inciting racial discrimination”; in line with this, Czechoslovakia proposed prohibiting “dissemination of ideas and doctrines based on racial superiority or hatred.” The uk expressed support to the threshold envisaged by the U.S. proposal since “speech should be free, but incitement to violence should be repressed.”
A number of other delegations, primarily Western, made similar statements, but the most eloquent opposition to Article 4 came from the Colombian representative, who stated that Article 4
is a throwback to the past . . . Punishing ideas, whatever they may be, is to aid and abet tyranny, and leads to the abuse of power . . . As far as we are concerned and as far as democracy is concerned, ideas should be fought with ideas and reasons; theories must be refuted by arguments and not by the scaffold, prison, exile, confiscation, or fines.
These views were countered by statements primarily from representatives of communist countries such as Hungary, Poland, Czechoslovakia, and Yugoslavia arguing that the prohibition against discrimination (even among private parties) should be given preference over freedom of expression.
After a proposal from the Nordic countries, a “due regard” clause was inserted in Article 4. According to this clause, state parties shall fulfill the obligations in Article 4 “with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention.”
Clearly, most proponents of hate-speech laws do not share the same ideologies and methods as antidemocratic states.
Taking into account the wording and drafting history of the icerd, it is not difficult to see why Article 4 so appealed to nondemocratic states. icerd makes the state responsible for eliminating discrimination through coercive measures. The idea that deliberate state action — even at the expense of individual liberty — is the principal vehicle for social change and human progress is a hallmark of socialism, fascism, communism, and in some cases, forms of progressivism. The liberal democracies of the day, committed to the value of individual freedom, were sympathetic to the need to fight racism, even if several Western states did have real problems with racism at home. But they regarded the dangers of equipping the state with draconian powers to combat racism and intolerance more dangerous than the evils that these measures were employed to cure. However, in the context of the recent memory of the Holocaust and Western qualms about colonialism and apartheid, liberal democracies were unable to persuade communist states, as well as a range of newly independent states, that icerd would be a useful tool of dictatorial nations in proscribing the freedom that their peoples had just won. However, some eighteen countries (including the U.S.), upon ratification, entered reservations and/or interpretive declarations specifically aimed at protecting freedom of expression.
Clearly, most contemporary proponents of hate-speech laws do not share the same ideologies and methods as the communist states of the day. Yet they seldom mention or reflect upon the fact that such laws were proposed and advocated for by antidemocratic states in which freedom of expression (as well as all other basic human rights) was routinely violated. Nor do they mention that these states, often totalitarian, had a clear interest in legitimizing and justifying their repression with the use of human rights language, inverting human rights protections into coercive human rights obligations. A good example of this paradox is the former Yugoslavia, the scene of the latest European genocide, a state very active in promoting a prohibition against hate speech at the un. Article 134 of the criminal code in force at the time of the breakup of the Socialist Federal Republic of Yugoslavia punished with imprisonment of up to ten years anyone who “incites or fans national, racial, or religious hatred or discord between peoples and nationalities.” The article was mostly used by the communist regime to silence critics, but the prohibition against hate speech obviously did nothing to inculcate a culture of tolerance that could prevent ethnic cleansings and genocide, which occurred throughout Yugoslavia’s breakup.
Eric Heinze is right in scolding leading critical race theorists for praising the supposed international consensus on hate-speech laws at the un while completely ignoring that the communist states promoting this agenda ruthlessly repressed national, ethnic, and religious minorities.
While Western countries have undeniably engaged in indefensible acts of racism and colonialism, free speech has given a voice to minorities in these states, which has been instrumental in overcoming the worst practices of official discrimination. No such development happened in the communist states, where dissenting minorities had to await the implosion of communism before they could speak their minds and exercise self-determination.
The principled resistance by most Western European democracies to iccpr Article 20 and — to a lesser extent — icerd Article 4 is particularly ironic when considering that today it is official policy in these countries — as well as in members of the eu and the Council of Europe — that hate speech should be criminalized. With the adoption of iccpr Article 20 and particularly icerd Article 4, European states abandoned their principled opposition to international hate-speech prohibitions; as a result, the 1970s saw a dramatic increase in new or expanded hate-speech laws in Europe. In fact, European states that only fifty years ago found hate-speech laws dangerous and arbitrary have today become active proponents of such laws, albeit on different grounds and for nobler purposes than the nondemocratic states they opposed during the Cold War. Hate-speech laws may thus be one of the last enduring legacies of European communism, and, as we shall see, this legacy is being exploited by a new group of mostly illiberal states for whom religion rather than communism should trump free speech.
Continued pressure on free expression
Although the soviet Union is now dissolved and Cold War divisions no longer dominate the human rights efforts of the United Nations, the pressure on freedom of expression has not come to an end. In fact, a new dividing line has emerged in the battle over the extent to which free speech should be restricted. Once again, Western countries find themselves defending freedom of expression — albeit from a much weaker and unprincipled position than before — while the countries of the Organization of Islamic Cooperation (oic) and their allies argue for restrictions. Now, freedom of expression is threatened by proposals justified by the putative need to oppose the so called “defamation of religions” and “Islamophobia” — meaning negative criticism of Islam and Muslims — which the oic seeks to prohibit under international human rights law.
The issue of defamation of religions has been highly divisive at the un, pitting the oic and its supporters against Western states, mirroring the Cold War debates over udhr, iccpr, and icerd. The oic’s insistence on criminalizing defamation of religions is a manifestation of the ongoing challenge to the idea of universal human rights by a number of non-Western nations, including Muslim ones. These states view the idea of universal human rights as a form of “soft imperialism” on the part of the West, threatening their traditional cultural and religious values. In 1990, the oic states adopted their own “Cairo Declaration on Human Rights in Islam,” which purports to unite Islam with human rights but in reality subordinates human rights to Islam. All the rights in the Cairo Declaration are subject to rules of Islamic Sharia law, which are incompatible with universal human rights protections. Article 21, for example, states that “everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah.”
Once again, Western states find themselves defending freedom of expression, now from the OIC and its allies.
In a 1995 debate at the un, the oic clarified what subjecting free speech to Sharia entails arguing, that “the right to freedom of thought, opinion, and expression could in no case justify blasphemy.” Moreover, the oic definition of blasphemy is extremely far-reaching, as witnesses by the widespread use of blasphemy laws in countries such as Egypt, where blogger Kareem Amer spent four years in prison for insulting Islam (and President Hosni Mubarak), and Pakistan, where thousands have been charged with blasphemy, with religious minorities being disproportionately targeted. Even relatively modern Indonesia has seen a number of blasphemy cases, as recorded in Freedom House’s 2010 publication “Policing Belief: The impact of blasphemy laws on human rights.”
It is this kind of law that the oic has tried to turn into an international human rights norm. The first resolution offered by Pakistan on behalf of the oic in 1999 was introduced under the title “Defamation of Islam,” but after some debate it was changed to “Defamation of Religions.” The resolution expresses “deep concern at negative stereotyping of religions” and states that “Islam is frequently and wrongly associated with human rights violations and with terrorism.” The resolution also “expresses its concern at any role in which the print, audiovisual, or electronic media or any other means is used to incite acts of violence, xenophobia, or related intolerance and discrimination towards Islam and any other religion.” Despite the fact that only Islam was mentioned — and despite the undeniable threat to free speech — the 1999 and 2000 resolutions on defamation of religions were adopted unanimously, without a vote. Since 2001, resolutions on defamation have become increasingly comprehensive and hostile to freedom of expression, and resistance to their more aggressive character means that they now are being put to a vote, first at the Commission on Human Rights and later the Human Rights Council (hrc), and since 2005 also at the General Assembly.
After peaking in 2003, resolutions on defamation of religion have steadily lost votes in the Commission, the hrc, and the General Assembly. In 2003, 32 countries voted in favor, with fourteen against and seven abstaining. In 2010, those numbers were twenty, seventeen, and eight. The oic was also dealt a blow at the Durban Review Conference held in Geneva in 2009. The oic had lobbied hard for the inclusion of a reference to defamation of religion, but the final document, while very far from perfect, did not include direct defamation language. The final blow came when the oic accepted a 2011 hrc resolution on, inter alia, “Combating intolerance, negative stereotyping, and stigmatization” of religious believers, which did not mention defamation language. Dwindling support has likely been key to the oic’s realization that defamation-of-religion resolutions — for now — are a dead end at the un. To their credit, Western states and human rights ngos were instrumental in opposing and (as of now) defeating the defamation agenda.
After peaking in 2003, resolutions on defamation of religion have steadily lost votes in the HRC, the Commision, and the General Assembly.
However, the very same countries and human rights activists that opposed the defamation agenda are typically in favor of hate-speech laws. The argument goes that defamation of religions protects abstract metaphysical constructs such as religion, whereas human rights are meant to protect only individuals. Technically this argument is correct (though third-generation rights such as the right to development and a clean environment contradict this position).
Yet, contemporary blasphemy laws typically protect the religious feelings of believers (not religious creeds or deities) as exemplified by the case law of the European Court of Human Rights, which allows the banning of “blasphemous” books and films that insult the religious feelings of believers (e.g., Otto Preminger v. Austria and Wingrove v. UK). As such, blasphemy laws often overlap with hate-speech laws, particularly when the latter include religion as a prohibited ground.
In the logic of the opponents of defamation of religions it would thus be incompatible with freedom of expression to criminalize harsh attacks against Islam on the basis of protecting this religion against defamation, whereas such criticism could plausibly be criminalized on the grounds of inciting hatred against Muslims under hate-speech laws as has happened in numerous European cases, such as Norwood v. UK and Soulas a.o. v. France.
Accordingly, the defeat of the defamation agenda, though a welcome and significant development, by no means secures freedom of expression in human rights law. While it was originally apparently a supplementary strategy, the oic countries have changed their main focus from a prohibition against blasphemy to a debate on the extent of the existing hate-speech prohibition in iccpr Article 20. Thus, while the recently adopted resolution in the hrc does not mention “defamation of religions,” it includes several references to the wording of Article 20.
But it also mentions “derogatory stereotyping, negative profiling, and stigmatization of persons based on their religion or belief” and “deplores any advocacy of discrimination . . . on the basis of religion or belief.” This wording is vague and unclear and would seem to fall well below the threshold of “advocacy of religious hatred” constituting “incitement to discrimination, hostility, or violence” established by Article 20. The resolution should thus be seen as an attempt by the oic to broaden the scope of Article 20 to include instances of so-called Islamophobia and what would have qualified as “defamation of religions,” such as the Danish Muhammad cartoons.
The broadening of Article 20 and the emphasis on the enforcement of this hate-speech clause were also included in the final-outcome document of the Durban Review Conference and a 2009 compromise resolution on freedom of expression co-sponsored by the United States and Egypt at the hrc. In a 2008 interview in Danish newspaper Jyllands-Posten, the secretary general of the oic stated that the oic is “neither against criticism of any religion nor calling for banning criticism of religions.” Rather the problem is when
religious beliefs . . . are ridiculed, denigrated, and targeted with campaigns of insults with apparent or declared intent to incite hatred against the followers of this or that religion . . . incitement for hatred should not be allowed, as long as this specific act constitutes a crime within the parameters of international human rights documents, particularly article 20 of [iccpr].
The latest example of this agenda could be witnessed at Denmark’s Universal Periodic Review at the hrc on May 2, 2011. Numerous oic states including Egypt, Indonesia, Malaysia, Bangladesh, and Pakistan complained that Danish hate-speech laws were not enforced sufficiently, particularly when it comes to “Islamophobia,” and alluded directly or indirectly to the publication of the Muhammad cartoons. Pakistan stated, “The newspaper publication of cartoons about the Prophet Muhammad . . . shocked Muslims worldwide . . . and violated Articles 19 and 20 of iccpr and Article 4 of icerd.”
The oic interpretation of Article 20 as covering instances of religious criticism and satire is not limited to these countries. The publication of the Muhammad cartoons prompted three independent un special rapporteurs, including the special rapporteur on freedom of opinion and expression, to issue a joint statement on February 8, 2006 on this “offensive publication.” While the rapporteurs stressed the importance of freedom of expression they went on to state that:
the use of stereotypes and labeling that insult deep-rooted religious feelings do not contribute to the creation of an environment conducive to constructive and peaceful dialogue among different communities . . . The Special Rapporteurs strongly deplore the depictions of the Prophet Muhammad and are distressed by the grave offence they have caused to the members of the Muslim communities.
This sort of development is exactly what Eleanor Roosevelt warned against during the debates on the iccpr, a view shared by delegates of almost all other Western states at the time. Yet, Western states, with the defeat of Western opposition to hate-speech laws and their subsequent embrace thereof, have severely limited their capacity to credibly oppose oic and un efforts to expand the scope of hate-speech laws. After all, how can countries where people are fined for criticizing Islam and Christianity, opposing multiculturalism, using colloquial expressions that are in other contexts racial epithets, advocating a boycott of Israel, denying the Holocaust and other genocides, expressing moral condemnation of homosexuality, etc. demand that other countries should refrain from enforcing rivaling interpretations of inherently vague and subjective hate-speech laws?
Respect for freedom of expression is the hallmark of free societies and the first right to be circumscribed by illiberal states. It is a sad reflection on Europe that the increasing emphasis on criminalizing words that wound, offend, or hurt is the brainchild of the very totalitarian states with which Western European states were locked in an ideological battle during the Cold War.
Jacob Mchangama is director of legal affairs at the Danish think tank CEPOS and external lecturer in international human rights law at the University of Copenhagen. He is a frequent commentator on human rights and the of rule law in Danish and international media.
Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylvania Press, 1999), 66.
Stephanie Farrior, “Molding the Matrix: The Historical and Theoretical Foundations of International Law Concerning Hate Speech,” Berkeley Journal of International Law 14:1 (1996).
Egon Schwelb, “The International Convention on the Elimination of All Forms of Racial Discrimination,” International and Comparative Law Quarterly 15:4 (1966).
Natan Lerner, UN Convention on the Elimination of All Forms of Racial Discrimination, (Sijthoff & Noordhoff, 1980), 7.
Mirjam Streng, “The Convention on the Elimination of All Forms of Racial Discrimination & Freedom of Expression,” working paper.
Eric Heinze, “Truth and Myth in Critical Race Theory and LatCrit: Human Rights and the Ethnocentrism of Anti-Ethnocentrism,” National Black Law Journal 20:2 (2008).
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