Support for ‘defamation of religion’ continues to decline; draft resolution passes by only 12 votes

On 24 November, the General Assembly’s Third Committee adopted the polarizing ‘defamation of religion’ draft resolution by a vote of 76 in favour, to 64 against, and 42 abstentions. The draft resolution,(1) tabled by Morocco on behalf of the Organization of the Islamic Conference (OIC),Venezuela and Belarus, passed by only 12 votes (compared to a margin of 26 votes in the Third Committee in 2009) indicating that the international community’s support for the resolution, and the concept of ‘defamation of religion’, continues to decline.

In 2009, a similar text was adopted by the Third Committee by a vote of 81 in favour, 55 against and 43 abstentions, and by the General Assembly 80-61, with 42 abstentions. Following the lead of other GRULAC members (Mexico, Chile, Panama, and Uruguay), who voted in the General Assembly against the resolution for the first time in 2009, Argentina this year switched its vote from abstain to ‘no’. Unfortunately Brazil continued to abstain, though it voiced concern that elements of the resolution were at odds with international human rights law. The Bahamas and Zambia also expressed their unease with the resolution by voting against it this year, whereas they both abstained in the Third Committee and the General Assembly vote in 2009. Barbados, Bhutan, Congo, the Democratic Republic of Congo, and Gabon, who switched from a ‘yes’ vote in the General Assembly in 2009 to an abstention this year at the Third Committee, also helped to continue the momentum against endorsement of the ‘defamation of religions’ concept. In a welcome development, no States that abstained in the General Assembly in 2009 decided to change their vote in the Third Committee to support the text this year. (2)

The draft resolution, which the General Assembly will consider in December, contained some cosmetic changes compared to last year’s text, including the replacement of ‘defamation of religions’ with ‘vilification of religions’ in most of the text. (3) However these, and other, supposed concessions (4) made by the sponsors were inadequate to dispel most States’ multiple concerns with the resolution’s language. One of the most concerning elements is the conflation in various provisions of the term ‘vilification of religions’ with incitement to religious hatred. Since incitement to religious hatred is prohibited under international human rights law (Article 20 of the International Covenant on Civil and Political Rights (ICCPR)), connecting the two terms implies that the ‘vilification of religions ‘(or in previous texts, the ‘defamation of religions’) could be a type of incitement to hatred and thus not protected by freedom of expression (Article 19, ICCPR). This connection could lead to the interpretation that laws banning blasphemy throughout the world are endorsed by international human rights law.

Interventions made before and after the vote highlighted States’ shared concerns about some of the core problems spurring the OIC focus on ‘defamation of religions’ in international human rights fora, including discrimination and intolerance against individuals based on their religion and belief (US, EU, Holy See, Guatemala). Most States though agreed that the OIC had failed to get at the heart of these concerns and instead had produced a text that, in the US delegate’s view, ‘justifies the infringement of human rights under the guise of promoting human rights’. States particularly opposed the attempt to seek a normative approach to protect religions, given that such an approach is inconsistent with international human rights law that protects individuals (EU, Switzerland). The draft’s changes, including the exchange of ‘defamation’ of religions with ‘vilification’ of religions, do not diminish this overarching concern. Several States cited the special procedures’ support for anchoring the debate within the existing international human rights framework (EU, Brazil), and encouraged the sponsors to use this framework, including Article 19 and 20 of the ICCPR, to tackle the issues at stake (EU, Brazil, Guatemala).

Other concerns included the reference to defamation of religion as a contemporary form of racism (Switzerland), the resolution’s potential adverse effect on minorities (Holy See), the resolution’s homogenization of minorities (EU); and the use of the term “Judaephobia” instead of anti-Semitism, which marked a deviation from the usual UN vernacular. (UK)

Diminishing support for the draft resolution ironically followed more open and transparent negotiations this year. Though many States praised the Moroccan-led negotiations, the US deemed the outcome worse in terms of substance from previous years. And despite the EU and US urging States to find common ground through other means than the divisive resolution, the OIC said it would pursue the issue ‘relentlessly’, including bringing the resolution to the Assembly again next year.

‘Defamation of religion’ also featured as a prominent theme in the interactive dialogues with the special procedures on racism and on freedom of religion and belief at the Third Committee this year.

Predictably, States’ interventions on these issues tracked similar fault lines from previous debates at recent sessions of the General Assembly and Human Rights Council. (5) OIC members (such as Pakistan, Iran, Jordan and Algeria) continued their push to validate the prohibition of ‘defamation of religion’ within international human rights discourse, while the US focused on the negative implications of the concept for both freedom of religion and belief and freedom of expression, and encouraged the use of means other than censorship to combat hatred. The EU reiterated its rejection of ‘defamation of religion’ as a legitmate concept within the international human rights framework and urged States to embrace the legal concept of incitement to religious hatred. Key special procedures also rebuffed the concept. Both the Special Rapporteur on racism, Mr. Githu Muigai, (who presented his report to the Third Committee on 1 November), and the new Special Rapporteur on freedom of religion and belief, Mr. Heiner Bielefeldt (who presented his report on 21 October) underscored that the appropriate focus of human rights is the individual not religious systems or ideas.

During the dialogues with Mr Muigai, Mr Bielefeldt, and the Chair of the Committee on the Elimination of Racial Discrimination (CERD), Mr Anwar Kemal (who addressed the Committee on 1 November 2010), OIC members injected into the discussions numerous interventions related to ‘defamation of religion’. They asked questions on: discrimination against Islam; how to address acts of extremist political parties that insult Islam, whether the Convention on the Elimination of All Forms of Racial Discrimination should be reopened to guarantee freedom from religious discrimination, if the Committee on CERD is directly concerned with discrimination on religious grounds, whether CERD guidelines on early warning signs should be modified to deal with new signs of discrimination against religions, and the scope of freedom of expression in relation to hateful political speech in Western countries. The former mandate-holder on freedom of religion, Ms Asma Jahangir, was also criticized for failing to understand the linkages between the defamation concept and the protection of adherents of religion, and the new Special Rapporteur on freedom of religion and belief received a pointed reminder to carefully follow the mandate as it was decided by the Council in a resolution adopted in June.(6)

Mr Muigai and Mr Bielefeldt attempted to allay OIC concerns by acknowledging some of the serious issues behind ‘defamation of religion’, and/or by highlighting the growing intolerance against certain religions, particularly Islam. However they also emphatically affirmed that the existing human rights framework was adequate to address these issues. Mr. Muigai noted that the framework provides sufficient tools to respond to incidents relating to incitement to religious hatred, though cases may warrant different approaches. He referred States to his report to the Council, (7) in which he groups incidents into five broad categories, (8) and recommends using applicable international human rights law to address them. Mr Bielefeldt, who expressed full support for his predecessor’s work, emphasized that Article 20 of the ICCPR is the tool for tackling the challenges associated with the debate. Mr Bielefeldt stressed that incitement to violence is not protected by the freedom of expression, and is prohibited under Article 20 of the ICCPR. However the challenge was in precisely working out where to draw the line in order to protect legitimate expression. It must, he said, be defined with the utmost diligence, precision and precaution.

Pakistan also sparred with Mr Muigai over how to address recent laws on banning religious symbols, including the recent Swiss ban on construction of minarets and the French ban of the Islamic veil, and whether they were a violation of human rights, including of the freedom to manifest one’s religion or belief, the freedom of expression, and principles of non-discrimination. Pakistan disagreed with the Special Rapporteur’s assertion that such bans are judicial questions for the courts to decide. In response Mr Muigai underscored that the key factor is context. Thus while the individual’s right to dress as they want must be asserted first and foremost, the issue of compatibility of that principle with certain situations must be left up to an independent an impartial judiciary to assess on a case by case basis. For example, an individual’s dress in the military versus the school environment presents different questions for a judge to consider. Refuting the widely-held view that such problems only occur in Western States, Mr Muigai provided an example from Kenya to try to show that countries from other regions also confront similar challenges. (9)

It is not clear how the steady erosion of support for combating ‘defamation of religion’ at the General Assembly will affect the OIC’s strategy at upcoming meetings, including at the next Ad Hoc Committee on Complementary Standards (postponed from November 2010 to early 2011) and at the Council in March 2011, when the OIC is expected to table another resolution on the subject. Certainly though the new developments create renewed momentum for human rights NGOs and supportive States to build on in their efforts to fight ‘defamation of religion’ and ensure enjoyment by all of established freedoms including freedom of expression and freedom of religion.

(1) A/C.3/65/L.46/Rev.1. Available at http://bit.ly/dGNQ9b

(2) Vanuatu changed their vote from ‘no’ in the General Assembly in 2009 to abstaining this year in the Third Committee. It is not clear what their position is since they also abstained in the Third Committee in 2009. There were also a few States who voted against or to abstain last year in the General Assembly, but were absent from the Third Committee’s vote this year: Equatorial Guinea, Burundi, Tonga.

(3) Except for three places, including the title, the phrase ‘vilification of religions’ replaces previous mentions of ‘defamation of religions’ in the text.

(4) This included the addition of a reference to religions other than Islam, in preambular paragraph nine: “Noting with deep concern the serious instances of intolerance, discrimination and acts of violence based on religion or belief, intimidation and coercion motivated

by extremism, religious or otherwise, occurring in many parts of the world,

including cases motivated by Islamophobia, Judeophobia and Christianophobia.”

(5)See ISHR report available at http://bit.ly/guwR5B

(6) Pakistan appeared to be referring to language that condemns incidents of incitement to religious hatred, discrimination, intolerance and violence in Council Resolution 14/11, which extended the mandate of the Special Rapporteur on freedom of religion and belief. Although this language was included at Pakistan’s request, the resolution did not contain calls for the Special Rapporteur to examine such incidents and to ensure respect for places of worship, which Pakistan had also wanted included.

(7) The report was submitted pursuant to Council Resolution 13/16 of 25 March 2010, in which the Council requested the Special Rapporteur to “report on all manifestations of defamation of religions, and in particular on the ongoing serious implications of Islamophobia, for the enjoyment of all rights by their followers, to the Council at its fifteenth session”.

(8) The five non-exhaustive categories are: acts of violence or discrimination against individuals on the basis of their religion or belief; attacks on religious sites; religious and ethnic profiling; a ban or restrictions on religious symbols; and negative stereotyping of religions and their followers.

(9) The Special Rapporteur said that the courts in Kenya (his own country) had concluded that a school could not deny access to a student wearing a headdress.