Transcript International Human Rights Law

Freedom of Expression & Religious
Sensitivities in Pluralist Societies:
A Human Rights-Based Rejection of Combating
Religious Defamation & A Conceptualization of the
Prohibition of Religious Hate Speech
Dr. Jeroen Temperman, Erasmus University Rotterdam
Freedom of Expression & Religious Sensitivities
in Pluralist Societies
Outline:
Historical background to problematique
State practice: defamation & hate speech
Approach UN Political Bodies vs. Approach
UN Expert Bodies
European Convention System
Conceptualization of the prohibition of
religious hate speech
Dr. Jeroen Temperman, Erasmus University Rotterdam
Religious Sources
Monotheistic world religions & Blasphemy:
 Tanakh
 Christian Bible
 Qur’an
Dr. Jeroen Temperman, Erasmus University Rotterdam
Leviticus 24:10–23
“Now an Israelite woman’s son, whose father was an Egyptian, went out
among the people of Israel. And the Israelite woman’s son and a man of
Israel fought in the camp, and the Israelite woman’s son blasphemed the
Name, and cursed. Then they brought him to Moses. His mother’s name was
Shelomith, the daughter of Dibri, of the tribe of Dan. And they put him in
custody, till the will of the LORD should be clear to them. Then the LORD
spoke to Moses, saying, "Bring out of the camp the one who cursed, and let
all who heard him lay their hands on his head, and let all the congregation
stone him. And speak to the people of Israel, saying, Whoever curses his God
shall bear his sin. Whoever blasphemes the name of the LORD shall surely be
put to death. All the congregation shall stone him. The sojourner as well as
the native, when he blasphemes the Name, shall be put to death…" So Moses
spoke to the people of Israel, and they brought out of the camp the one who
had cursed and stoned him with stones. Thus the people of Israel did as the
LORD commanded Moses” (English Standard Version, emphasis added).
Dr. Jeroen Temperman, Erasmus University Rotterdam
Matthew 12:30–32
“Whoever is not with me is against me, and
whoever does not gather with me scatters.
Therefore I tell you, every sin and blasphemy
will be forgiven people, but the blasphemy
against the Spirit will not be forgiven. And
whoever speaks a word against the Son of
Man will be forgiven, but whoever speaks
against the Holy Spirit will not be forgiven,
either in this age or in the age to come”
(ESV, emphasis added).
Dr. Jeroen Temperman, Erasmus University Rotterdam
The Holy Qur’an: 9:74
“They swear by Allah that they said nothing (evil),
but indeed they uttered blasphemy, and they did it
after accepting Islam; and they meditated a plot
which they were unable to carry out: this revenge of
theirs was (their) only return for the bounty with
which Allah and His Messenger had enriched them! If
they repent, it will be best for them; but if they turn
back (to their evil ways), Allah will punish them with
a grievous penalty in this life and in the Hereafter:
They shall have none on earth to protect or help
them” (tranl. Abdullah Yusuf Ali, emphasis added).
Dr. Jeroen Temperman, Erasmus University Rotterdam
State Practice – General Observations
 Blasphemy/defamation bans initially designed to protect
official/predominant religion specifically
 ‘Christian’ blasphemy prohibitions (cannon or common law)
criminalized intentionally shocking or harming the religious
feelings of the community
 ‘Islamic’ blasphemy ban: tighter nexus with prohibition of
apostasy/conversion (away from Islam)
Dr. Jeroen Temperman, Erasmus University Rotterdam
Exceptions: e.g. sec. 36 of Ch. 272 of the
Criminal Code of Massachusetts
“Whoever wilfully blasphemes the holy name of God
by denying, cursing or contumeliously reproaching
God, his creation, government or final judging of the
world, or by cursing or contumeliously reproaching
Jesus Christ or the Holy Ghost, or by cursing or
contumeliously reproaching or exposing to contempt
and ridicule, the holy word of God contained in the
holy scriptures shall be punished by imprisonment in
jail for not more than one year or by a fine of not
more than three hundred dollars, and may also be
bound to good behavior” (emphasis added).
Dr. Jeroen Temperman, Erasmus University Rotterdam
State Practice – Predominantly
Christian States
E.g.
 UK: blasphemy ban intended to solely protect
(Anglican) Church of England
 UK’s (abrogated) ban ‘exported’ to
Commonwealth nations
 Ireland
 Scandinavia
 Greece
Dr. Jeroen Temperman, Erasmus University Rotterdam
State Practice – Predominantly
Islamic States
o Fairly ubiquitous
o No ‘dead letter’
o Tight nexus between blasphemy and
apostasy
o Blasphemy laws occasionally (ab)used
to crackdown on:
•
•
political dissidents (e.g. Iran)
‘heretic’ religious minorities (e.g. Pakistan)
Dr. Jeroen Temperman, Erasmus University Rotterdam
Pakistani Example
“Offences Relating to Religion”-Chapter of
Penal Code: defiling of the Qur’an,
Muhammad or other Islamic holy personages
is punishable with life imprisonment, death or
temporary imprisonment respectively.
Anti-Ahmadi laws (1974/1984)
Dr. Jeroen Temperman, Erasmus University Rotterdam
Anti-Ahmadi laws
“Any person …calling himself “Ahmadi” or by any other name who by words,
either spoken or written, or by visible representation:
a)
b)
c)
refers to or addresses, any person, other than a Caliph or companion of the
Holy Prophet Muhammad (peace be upon him), as “Ameer-ul-Mumineen”,
“Khalifatul-Mumineen”, “Khalifa-tul-Muslimeen”, “Sahaabi” or “Razi Allah
Anho”;
refers to, or addresses, any person, other than a wife of the Holy Prophet
Muhammad (peace be upon him), as “Ummul-Mumineen”;
refers to, or addresses, any person, other than a member of the family
“Ahle-bait” of the Holy Prophet Muhammad (peace be upon him), as “Ahlebaft”; …
shall be punished with imprisonment of either description for a term which
may extend to three years, and shall also be liable to fine ...
An Ahmadi who “in any manner whatsoever outrages the religious feelings of
Muslims” shall be punished with imprisonment or a fine.”
Dr. Jeroen Temperman, Erasmus University Rotterdam
Religious Hate Speech Legislation
 (Religious) Hate Speech Bills, e.g. UK, Australia, Switzerland
 Generic Penal Code provisions on incitement, e.g. Brazil,
Canada, Croatia, Denmark, Finland, Germany, India,
Netherlands, New Zealand, Serbia, Sweden
 ‘Denial laws’; e.g. Austria, Belgium, France
 De facto application of defamation laws to counter religious
hate speech (e.g. Iceland, Norway): important role judge
 Purely a matter of jurisprudence: liberal democracies with no
hate speech legislation (e.g. USA): ‘clear and present danger’,
‘imminent action’ doctrine
 Regulations tackling specific forms of religious hate speech
International Approach to the
Interplay Between FoR & FoE
Distinction:
 UN Political Bodies
 UN Expert Bodies
Dr. Jeroen Temperman, Erasmus University Rotterdam
UN Political Approach: Counter All
Religious Defamation
Combating-Defamation Resolutions:
“…everyone has the right to hold opinions without interference
and the right to freedom of expression, and that the exercise of
these rights carries with it special duties and responsibilities and
may therefore be subject to limitations as are provided for by
law and are necessary for respect of the rights or reputations of
others, protection of national security or of public order, public
health or morals and respect for religions and beliefs…”
E.g. GA Resolution 62/154 of 18 December 2007, para. 10 (emphasis added). Similarly, e.g.: GA Resolution
61/164 of 19 December 2006, para. 9; and Human Rights Council Resolution 4/9 of 30 March 2007, para.
10.
Dr. Jeroen Temperman, Erasmus University Rotterdam
Conclusion Counter-Defamation
Approach
(i)
seeks to shift the emphasis from protection of the rights of
individuals to protection of religions per se;
(ii)
introduces grounds for limitation of human rights, particularly
of the right to freedom of expression, that are not recognized
by international human rights law (e.g. respect for religions,
respect for people’s religious feelings);
(iii) seeks to reformulate the right to freedom of religion or belief
so as to include a right to have one’s religious feelings
respected.
Dr. Jeroen Temperman, Erasmus University Rotterdam
International Legal Approach: UN Expert
Bodies
o No right to have one’s religion or belief at all
times exempted from criticism, ridicule or
insult or a right to respect for one’s religious
feelings
o The ‘right of others to freedom of religion or
belief’ is a legitimate ground for limitation but
high threshold criteria must be met
E.g. Human Rights Committee, Malcolm Ross v. Canada; Human Rights Committee, draft-General
Comment 34 on Article 19; Joint Report A/HRC/2/3 by UN Special Rapporteurs on Freedom of Expression
and on Freedom of Religion
Dr. Jeroen Temperman, Erasmus University Rotterdam
Rights of others to freedom of religion or
belief as ground for limitation of FoE
This ground for limitation:
(i)
should not be equated with a right to respect
for one’s religious feelings; and
(ii) forms of criticism, ridicule or insult of religion
do not necessarily constitute a limit or threat
to other people’s freedom of religion or belief:
onus is on state to prove concrete risk of third
parties’ rights being undermined by public
expression.
Dr. Jeroen Temperman, Erasmus University Rotterdam
Conclusion UN Expert Approach
Crucial distinction between:
 legal (albeit perhaps morally deplorable)
forms of religious defamation; vs.
 illegal forms of religious hate speech.
Advantages:
 mechanism is already in place;
 fosters both FoR & FoE;
 hate speech can be objectified; whilst insult is too subjective a
criterion to limit free speech;
 less scope for governmental abuse.
Dr. Jeroen Temperman, Erasmus University Rotterdam
European Court HR & Religious
Defamation
3 objectionable trends:
i. Development of abstract notion of a ‘right not to be insulted in
one’s religious feelings’
ii. ECtHR fails to realize that there is no conflict between FoE &
FoRB in abstracto:
•
•
actual (rare) clashes need to be substantiated;
proper, critical balance must be struck
iii. ECtHR sanctions discriminatory laws
Dr. Jeroen Temperman, Erasmus University Rotterdam
(i) A ‘right not to be insulted in
one’s religious feelings’?
 “the right of citizens not to be offended in their religious feelings
by publications” (Gay News)
 “the respect for the religious feelings of believers as guaranteed
in Article 9 [of the European Convention on Human Rights]”
(Otto Preminger)
 “the right of citizens not to be insulted in their religious feelings”
(Otto Preminger)
 “the right of citizens not to be insulted in their religious feelings”
(Wingrove)
 “[need to] to ensure respect for the religious doctrines and
beliefs of others” (Murphy)
Dr. Jeroen Temperman, Erasmus University Rotterdam
(ii) conflict between FoE & FoRB
in abstracto?
E.g.: İ.A. v. Turkey:
Freedom of expression (publisher) restricted on the basis of
existing ground for limitation (“right of others to respect for
their freedom of thought, conscience and religion”); however,


no inquiry whatsoever into the Q as to whether the two
rights indeed conflict in this particular case
Balancing rights without a legal necessity to do so might
actually lead to infringements
Dr. Jeroen Temperman, Erasmus University Rotterdam
(iii) ECtHR sanctions
discriminatory laws
E.g. Wingrove & Gay News:
“It is true that the English law of blasphemy only extends to the
Christian faith. … The uncontested fact that the law of
blasphemy does not treat on an equal footing the different
religions practised in the United Kingdom does not detract from
the legitimacy of the aim pursued in the present context”
Dr. Jeroen Temperman, Erasmus University Rotterdam
Way forward
Further conceptualization of the state duty (art. 20(2) ICCPR) to
prohibit religious hate speech; more particularly:
 To conceptualize the prohibition of ‘religious hate speech’ as a notion of
international law;
 To identify legal benchmarks and factors that help determine the
phenomenon religious hate speech;
 To identify state obligations emanating from the internationally codified
religious hate speech prohibition;
 To identify and overcome legal or political obstacles to full compliance
with the prohibition of religious hate speech.
Dr. Jeroen Temperman, Erasmus University Rotterdam
Article 20(2) International Covenant
on Civil and Political Rights
“Any advocacy of…religious hatred that
constitutes incitement to
discrimination, hostility or violence
shall be prohibited by law.”
Dr. Jeroen Temperman, Erasmus University Rotterdam
Conceptualization of ‘Religion
Hate Speech’ Prohibition
Scope:

Hate speech vis-à-vis a specific
religious group;

Religion-inspired hate speech.
Dr. Jeroen Temperman, Erasmus University Rotterdam
Art. 137d Dutch Penal Code
“Any person who publicly, orally or in
writing or image, incites to hatred or
discrimination against persons…on
account of their religion or belief…may
be punished with imprisonment of
maximally one year or a third category
fine.”
Draft-GC on Art. 19 & 20 ICCPR
 State obligations under 20(2):
 Legislative action (prohibition of “extreme speech”)
 Ex post facto punishment: early warning system?
 Definition of key terms:
 Advocacy: “By advocacy is meant public forms of expression that are intended to
elicit action or response”
 Hatred: “By hatred is meant intense emotions of opprobrium, enmity and
detestation towards a target group”
 Incitement: “Incitement refers to the need for the advocacy to be likely to trigger
imminent acts of discrimination, hostility or violence. It would be sufficient that
the incitement relate to any one of the three outcomes: discrimination, hostility or
violence”.
 Relation to Art. 19:
 “The acts that are address in article 20 are of such an extreme nature that they
would all be subject to limitations of Article 19, paragraph 3. As such, a restriction
that is justified on the basis of article 20 requires also to comply with article 19,
paragraph 3, which lays down requirements for determining whether restrictions
on expression are permissible.”
Art. 137d Dutch Penal Code
“Any person who publicly, orally or in
writing or image, incites to hatred or
discrimination against persons…on
account of their religion or belief…may
be punished with imprisonment of
maximally one year or a third category
fine.”
Geert Wilders
“In 1945, Nazism was defeated in Europe.
In 1989, Communism was defeated in
Europe.
Now the Islamic ideology has to be defeated.
Stop Islamization.
Defend our freedom.”
(p. 19 Subpoena 13/425046-09, Arrondissementsparket Amsterdam; quote from Fitna)
Conceptualization of ‘Religious
Hate Speech’ Prohibition
Key questions:
 Legal significance of the role/position of the person behind the
speech?;
 What is the legal significance of the type of medium used?;
 What the legal significance of demographical figures (religious
adherence) and the level of public peace within society?;
 May or should the public denial of indisputable atrocities
suffered by (vulnerable) religious minorities be qualified as hate
speech?;
 In the context of religion-inspired hate speech, what is the legal
significance of the right to freedom of religion or belief?
Dr. Jeroen Temperman, Erasmus University Rotterdam