STIFLING FREE SPEECH-CLOBALLY
A coalition of Islamic states is using the United Nations to enact international 'anti-defamation' rules
LUIZA CH. SAVAGE
Asma Fatima, a petite, bespectacled Pakistani diplomat in Washington, sat at the front of a crowded Capitol Hill hearing room on July 18, carefully considering whether a man seated a few places to her left on the panel should be jailed. The occasion was a panel discussion convened by a group of congressmen to educate their colleagues on the issue of religious freedom, and the man was Canadian Ezra Levant, who in February 2006 republished Danish cartoons of the Prophet Muhammad in his now-defunct magazine the Western Standard, which resulted in, among other things, two complaints of “discrimination” before the Alberta human rights commission. One complaint was withdrawn, but the other continues. If it is upheld, Levant could face a large fine, a lifetime order not to talk about “radical Islam” disparagingly, and be forced to issue an apology. If Levant does not comply with these orders, he could be imprisoned for contempt of court.
Fatima tried to find the right words to explain the depth of the emotions at stake. “The cartoon issue really, really hurt Muslims around the world,” she told an audience that included congressional staffers as well as officials from the departments of State, Justice, and the media, and various human rights advocates, including a pair of Buddhist monks in bright robes. “There are certain things that should not be said.” Ultimately, though, Fatima concluded that a journalist should be, as she put it “off the hook.” Her government has not been so generous.
Pakistan and the other nations that have banded together in the Organization of the Islamic Conference have been leading a remarkably successful campaign through the United Nations to enshrine in international law prohibitions against “defamation of religions,” particularly Islam. Their aim is to empower governments around the world to punish anyone who commits the “heinous act” of defaming Islam. Critics say it is an attempt to globalize laws against blasphemy that exist in some Muslim countries—and that the movement has already succeeded in suppressing open discussion in international forums of issues such as female genital mutilation, honour killings and gay rights.
The campaign gives a new global context in which to view Levant’s ordeal and other recent attempts to censor or punish Canadian commentators, publishers and cartoonists. Human rights cases were brought against this magazine for the October 2006 publication of an excerpt of a book by Mark Steyn that, the complainants alleged, “subjected Canadian Muslims to hatred and contempt.” David Harris, a former chief of strategic planning for the Canadian Security Intelligence Service, was sued for remarks he made on the Ottawa radio station CFRA linking a Canadian Islamic group to a controversial American organization. And in May, a Nova Scotia Islamic group filed complaints with Halifax police and the province’s human rights commission against the Halifax Chronicle-Herald for a cartoon it considered a hate crime.
Pakistan brought the first “defamation of religions” resolution to the UN Human Rights Council in 1999—before the attacks of 9/11 and a resulting “backlash” against Muslims. That first resolution was entitled “Defamation of Islam.” That title was later changed to include all religions, although the texts of all subsequent resolutions have continued to single out Islam. The resolutions have passed the UN Human Rights Council every year since the first was introduced. In 2005, the delegate from Yemen introduced a similar resolution to the UN General Assembly, and it passed, as it has every year since, with landslide votes. In March, the Islamic nations were successful in introducing a change to the mandate of the UN’s special rapporteur on freedom of expression—an official who travels the world investigating and reporting on censorship and violations of free speech—to now “report on instances where the abuse of the right of freedom of expression constitutes an act of racial or religious discrimination.” The issue is expected to be a focal point of the UN World Conference Against Racism next year in Geneva (a gathering Canada plans to boycott after the 2001 meeting in Durban devolved into acrimonious exchanges over Israel).
LARRY MACDOUGAL/CP: VICTOR TONELL/REUTERS
The trend has rights advocates worried for numerous reasons, beginning with the language used. If the notion of “defaming” a religion sounds a little unfamiliar, that’s because it is a major departure from the traditional understanding of what defamation means. Defamation laws traditionally protect individual people from being materially harmed by the dissemination of falsehoods. But “defamation of religions” is not about protecting individual believers from damage to their reputations caused by false statements—but rather about protecting a religion, or some interpretation of it, or the feelings of the followers. While a traditional defence in a defamation lawsuit is that the accused was merely telling the truth, religions by definition present competing claims on the truth, and one person’s religious truth is easily another’s apostasy. “Truth” is no defence in such cases. The subjective perception of insult is what matters, and what puts the whole approach on a collision course with the human rights regime—especially in countries with an official state religion.
“Islamophobia is a problem. But this is not a practical solution, and it destabilizes the human rights agenda,” said Angela Wu, international law director for the Becket Fund for Religious Liberty, a public-interest law firm based in Washington that is dedicated to protecting the free expression of all religious traditions. And, she further told the congressional briefing, “The defamation of religions protects ideas rather than individuals, and makes the state the arbiter of which ideas are true. It requires the state to sort good and bad ideologies.” By doing so, she said, the approach “violates the very foundations of the human rights tradition by protecting ideas rather than the individuals who hold ideas.”
SOME STATES HAVE USED SUCH LAWS TO SILENCE DISSENT AND RESTRICT CRITICISM
In a written brief, Wu said that the resolutions seek to mimic the kinds of anti-blasphemy laws that exist in countries such as Pakistan. The UN resolutions “operate as international anti-blasphemy laws and provide international cover for domestic antiblasphemy laws, which in practice empower ruling majorities against weak minorities and dissenters,” her brief states. Pakistan’s penal code includes a section that states that defiling Islam or its prophets is deserving of the death penalty; that defiling, damaging or desecrating the Quran will be punished with life imprisonment; and insulting another’s religious feelings can be punished with 10 years in prison. A 2006 report from the U.S. State Department on international religious freedom stated that such anti-blasphemy laws “are often used to intimidate reform-minded Muslims, sectarian opponents, and religious minorities, or to settle personal scores.” According to Amnesty International, Younis Masih, a Christian, was sentenced to death in 2007 for allegedly making derogatory remarks about the Prophet Muhammad. In Egypt, a professor at Cairo University was declared an “apostate” in 1995 for teaching his students to read parts of the Quran metaphorically, and was ordered to divorce his Muslim wife.
The congressional briefing also heard from Ziya Meral, a Turkish researcher and journalist who recently published a report on apostasy laws in the Middle East, documenting in horrific details the tortures, killings, and persecution not only of Christians and Jews, but of Muslims in some countries who dared question the state-endorsed views of Islam. “This has tremendous implications for millions of people around the world,” Meral said at the briefing. Wu noted that the majority of victims of anti-blasphemy laws are Muslims.
campaign is beginning to raise alarm in some corners of the UN. In March, the UN’s special rapporteur on the right to freedom of opinion and expression, Ambeyi Ligabo—the same one whose job has just been amended to report on the defamation of religions—compared the measures to other attempts to oppress individuals who speak out against governments. “The special rapporteur is also concerned about the trend of increasing the scope of defamation laws to include the protection of subjective values, such as a sense of national identity, religions, state symbols, institutions or even representatives such as the head of state,” he wrote in his last annual report to the Human Rights Council before his term ends in August. “The special rapporteur reiterates that the provisions on protection of reputation contained in international human rights law are designed to protect individuals, not abstract values or institutions.”
A broad interpretation of defamation, Ligabo further wrote, “has more often than not been used by governments as a means to restrict criticism and silent [sic] dissent. Furthermore, as regional human rights courts have already recognized, the right to freedom of expression is applicable not only to comfortable, inoffensive or politically correct opinions, but also to ideas that ‘offend, shock and disturb.’ The constant confrontation of ideas, even controversial ones, is a stepping stone to vibrant democratic societies.” Ligabo added that limits on hate speech were put into international agreements in order to prevent war propaganda and incitement of national, racial or religious hatred. They were “not designed to protect belief systems from external or internal criticism.”
Yet that is exactly what they are already doing. The campaign against “defamation of religions” can already claim some impact. During a discussion at the UN Human Rights Council in June, two non-governmental organizations were scheduled to give a joint three-minute speech describing the widespread violence against women in Muslim countries, including “honour killings” and female genital mutilation. In his planned remarks, the NGO speaker wanted to mention the failure of Islamic religious leaders to clearly condemn the practices, and linked Islamic law, called sharia, to the stoning of adulteresses and child marriages. He was repeatedly interrupted by Egypt’s delegate, who, after reading a copy of the full speech, objected. The delegate said that discussion
of sharia “will not happen.” Islam, he said, “will not be crucified in this council.” According to a detailed report by the Reuters news organization, he asked the president of the council, a Romanian delegate, to bar any debate that included sharia because it would “amount to spreading of hatred against certain members of this council.” The Romanian suspended the session and told the NGOs not to mention sharia, according to Reuters. Egypt, backed by Pakistan and Iran, said that referring to sharia law in the council meant “crucifying” Islamic states.
THE INTENT IS TO PUNISH THOSE WHO COMMIT THE‘HEINOUS ACT’OF DEFAMING ISLAM
Louise Arbour, the former Canadian Supreme Court justice who served as the UN human rights commissioner, accused the countries of imposing “taboos” over the council. “It is very concerning in a council which should be... the guardian of freedom of expression, to see constraints or taboos, or subjects that become taboo for discussion,” she said at a news conference. She also noted that the treatment of homosexuals, who are prosecuted as criminals in a number of Islamic countries and others, is “fundamental” to the debate on sexual discrimination around the world. “It is difficult for me to accept that a council that is the guardian of legality prevents the presentation of serious analysis or discussion on questions of the evolution of the concept of non-discrimination,” Arbour said. Arbour stepped down from the post in June and was not available to discuss the incident, her spokeswoman said.
Susan Bunn Livingstone, a former U.S. State Department official who specialized in human rights issues and also spoke to the July 18 congressional gathering, said the developments at the UN are worrisome. “They are trying to internationalize the concept of blasphemy,” said Livingstone at the panel. She contrasted “the concept of injuring feelings versus what is actually happening on the ground—torture, imprisonment, abuse.” And, she added, “They are using this discourse of ‘defamation’ to carve out any attention we would bring to a country. Abstractions like states and ideologies and religions are seen as more important than individuals. This is a moral failure.”
The fact that the resolutions keep passing, and that UN officials now monitor countries’ compliance, could help the concept of “defamation of religions” become an international legal norm, said Livingstone, noting that when the International Court of Justice at The Hague decides what rises to the level of an “international customary law,” it looks not to unanimity among countries but to “general adherence.” “That’s why these UN resolutions are so troubling,” she said. “They’ve been passed for 10 years.”
The anti-defamation campaign is itself part of a larger agenda to reshape the understanding of human rights being advanced by the Organization of the Islamic Conference, a group of more than 50 states promoting Muslim solidarity and co-operation in economic, social, and political affairs. The organization was founded and is largely funded by Saudi Arabia, a monarchy ruled under strict religious laws, where women, religious minorities and gay people are subject to various forms of discrimination and human rights abuses.
In March, the group held a summit in Dakar, Senegal. Their final communiqué ran 52 pages and included a comprehensive strategy on human rights that featured a plan to shield Islamic states from being pressured to change their more contentious practices through international human rights laws and organizations. The conference expressed ‘deep concern over attempts to exploit the issue of human rights to discredit the principles and provisions of Islamic sharia and to interfere in the affairs of Muslim states.” It also called for “abstaining from using the
universality of human rights as a pretext to interfere in the internal affairs of states and undermining their national sovereignty.” The states also resolved to coordinate and co-operate “in the field of human rights particularly in the relevant international fora to face any attempt to use human rights as a means of political pressure on any member state.”
They also called for a binding international covenant to protect religions from defamation. The organization “stressed the need to prevent the abuse of freedom of expression and the press for insulting Islam and other divine religions, calling upon member states to take all appropriate measures to consider all acts, whatever they may be, which defame Islam, as heinous acts that require punishment.” The conference also expressed its strong support for an initiative spearheaded by the king of Morocco that calls for developing an international charter that defines “appropriate standards and rules” for exercising the right of freedom of expression and opinion, and “the obligation to respect religions [sic] symbols and sanctities as well as spiritual values and beliefs.” The states are working on an entire Islamic human rights charter.
Yet if the goal is to protect Muslims from discrimination or denunciation, the legal tools already exist. The UN International Covenant on Civil and Political Rights protects against religious discrimination. It ensures the right to freedom of thought, conscience and religion. It also protects against advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence.
U.S. Congress is beginning to pay attention to the issue. In addition to the July 18 briefing organized by the congressional task force on religious freedom, several bills have been introduced to protect the traditional definition of defamation and to preserve the traditional interpretation of free speech. One of the bills would allow Americans to counter-sue in U.S. courts against foreigners who pursue them in foreign courts for charges that would not constitute defamation under American law. Another bill would forbid U.S. courts from enforcing foreign defamation judgments unless they are consistent with the robust free speech protections in the U.S. constitution. The bills have not been voted on.
Meanwhile, the campaign by the Muslim states presses on. The latest Human Rights Council resolution introduced by Pakistan in March notes with deep concern, among other things, “the increasing trend in recent years of statements attacking religions, Islam and Muslims in particular, in human rights forums.” It calls on states to “take actions to prohibit the dissemination” of “ideas and material aimed at any religion or its followers that constitute incitement to racial and religious hatred, hostility or violence.” It also states that freedom of expression is subject to limitations, including those necessary for ‘national security or of public order, or of public health or morals.”
Fatima, the Pakistani diplomat, advised journalists to “just avoid hurting religious sentiment.” But whose religious sentiment?
Those who follow traditions of Islam that forbid the depiction of Muhammad, or those who don’t? Should only cartoons of the prophet be the basis for legal complaints, or also, for example, the depiction of the Prophet on the frieze inside the U.S. Supreme Court, alongside other historical lawgivers? According to the Becket Fund brief to the congressional task force, “Under the standards promoted by the ‘defamation of religion’ resolutions, when a Muslim states his belief that Jesus was a prophet, but not God incarnate, such statements could also be considered ‘defamation’ against the Christian faith of many believers.”
The religious defamation laws urged by the resolutions rely on subjective emotional reactions and are therefore easy to abuse. “We don’t want a jurisprudence of hurt feelings,” said Wu. Levant calls the anti-defamation campaign a “soft jihad”—an attempt to advance Islamic law around the world, not through violence but through Western legal channels. “If an army came to our shores saying give up equal rights for women and your freedom of speech, we would defend ourselves,” Levant told Maclean’s after the briefing. “But when lawyers and lobbyists come, we are confused.”