U.N. Anti-Blasphemy Resolution Overturned

United Nations Human Rights Council

The World Trade Center attacks of September 11, 2001 were followed by a surge of anti-Muslim discrimination, harassment, and violence in Europe and North America. Mosques were desecrated, illegal detentions and profiling became more frequent, and the airwaves vibrated with bigoted and incendiary remarks about Muslims. Concerned about the plight of Muslim minorities in predominantly secular or Christian societies and about the increasingly negative stereotyping of Islam in Western media, the Organisation of the Islamic Conference (OIC)* used its influence in the United Nations Commission on Human Rights* to promote a non-binding resolution condemning “defamation of religion” as a human rights violation.  The resolution, proposed by Pakistan on behalf of the OIC, was passed on March 26, 2009 with 23 states in favor, 11 against, and 13 abstentions.

(*Note: The Organisation of the Islamic Conference was recently renamed “Organisation of Islamic Cooperation,” and the U.N. Commission on Human Rights is now called the U.N. Human Rights Council [HRC].)

The “non-binding” character of a U.N. resolution should not be construed to mean that its contents are weightless. People the world over look to the U.N. as a source of moral authority; its seal of approval can fortify governments and non-governmental organizations (NGOs) in pursuit of their agendas. Censure by the U.N. can deprive them of legitimacy and tip the balance of world opinion against them.

The OIC was legitimately alarmed about “acts of violence, intimidation, and coercion motivated by religious extremism,” but such acts were already covered under the U.N. Universal Declaration of Human Rights (1948). What was new and significant in this resolution was exactly what its name suggests: It was about defamation, not of persons but of religions—and of Islam in particular. Here are the first three “concerns” voiced by the resolution:

The Commission on Human Rights…

1. Expresses deep concern at negative stereotyping of religions.

2. Also expresses deep concern that Islam is frequently and wrongly associated with human rights violations and with terrorism.

3. 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.

A close reading of the resolution reveals a number of serious flaws.

First of all, what exactly constitutes “defamation” of a religion? We are used to thinking of defamation as a negative and damaging mischaracterization of a person or persons—one that may be actionable in some cases because of the real harm that is done to the targeted individual(s). But a negative and potentially damaging statement about a religion or a theological concept does no harm to any individual(s) until and unless it includes an actual incitement to violence or discrimination against adherents, and the issue of incitement is already well covered in international law. Without the incitement, there is only a criticism, which may fair or unfair, true or untrue, but believers cannot reasonably expect to be protected from criticism any more than politicians or scientists are.

Point 1, concerning “negative stereotyping of religions,” also needs unpacking. “Stereotype,” a wobbly word, usually refers to an overly-simplified characterization of a group (e.g., blondes, Lutherans, lesbians). Most humor would be impossible without it (Ellen Degeneres would pass; George Carlin would not.), and, as we have all learned, humor sometimes causes offense—a small price to pay for free expression. Stereotypes, whether kind or cruel, proliferate in satire, polemic, and even in ordinary conversation, and decisions about whether and how to use them must be left to individuals. We do not want to live in a world where films like “The Life of Brian” cannot be made and where books like “The DaVinci Code” cannot be published. The proper response to negative stereotyping is to propagate the truth, not to censor the expression.

International human rights law does not guarantee freedom from offense any more than it protects people and ideas from criticism. Religious adherents may feel deeply insulted by the beliefs of other religions regarding them: the Mormon practice of doing genealogical research on Jewish families in order to “pray them into heaven” is highly offensive to many Jews, as is Pope Benedict’s 2007 claim that Roman Catholicism provides the only true path to salvation. Hindus, Sikhs, and Buddhists would understandably be offended by the Islamic teaching that disbelievers (in Allah) are actually deniers, or liars, and that they will go to Hell. Of all the world’s religions, the monotheisms are probably the worst offenders when it comes to negative, even vicious, stereotyping of other religions.

Point 2 is a bit of “special pleading” for Islam: “Islam is frequently and wrongly associated with human rights violations and with terrorism.” Frequently, yes. But wrongly? One has to wonder how this blatantly false assertion was ever approved by the HRC. Enough said.

Finally, in Point 3, what does it mean to “incite acts of violence, xenophobia, or related intolerance and discrimination toward Islam and any other religion…through print, audiovisual, or electronic media?” What constitutes such an incitement, and how is one to determine whether a particular op-ed piece or cartoon was intended to incite violence or only to invite a conversation? Wherever Muslim sensibilities have been infused with Islamic teachings about blasphemy, they have become finely calibrated to detect insult toward their religion or the Prophet Mohammad. (As someone once warned me in Saudi Arabia, “Never, never start a sentence with ‘Your father…’ when speaking to a Yemeni.”) Any criticism whatsoever, however harmless by the standards of liberal democracies, can be interpreted as an incitement in cultures where honor codes are so finely tuned.

Ironically, the “incitement” clause can be used to stifle dissent and minority religious views in predominantly Muslim countries. This is an encroachment on the very “freedom of expression” that the resolution affirms in its opening clauses. Even Western liberal democracies have felt the punch: Films like “Submission” (by Theo van Gogh and Ayaan Hirsi Ali) and “Fitna” (Geert Wilders)—both critical of Islam—have been subjected to censorship by European governments. (They are now available on the Internet.)

Because the Defamation of Religions resolution made no attempt to clarify these issues, the European Union, India, and Canada formally objected to it. Ottawa’s representative, addressing the council, said, “It is individuals who have rights, not religions. Canada believes that to extend [the notion of] defamation beyond its proper scope would jeopardize the fundamental right to freedom of expression, which includes freedom of expression on religious subjects.”

It’s worth stressing that, while the resolution itself reaffirmed every individual’s “right to freedom of thought, conscience, expression, and religion,” it was precisely these rights that the resolution tried to suppress. It is as though the very purpose of the HRC had been turned on its head. The Center for Inquiry (CFI)—an NGO in consultative status with the UN—issued a statement warning that the resolution might be used to legitimize anti-blasphemy laws that punish religious minorities as well as non-theists or atheists:

Any protection of religious believers must not discriminate against nonbelievers, religious minorities, and religious dissidents. Their right to criticize and dissent from religious belief must be protected. For example, the European Court of Human Rights case law applying the European Convention for the Protection of Human Rights and Fundamental Freedoms Convention rightly holds that religiously offensive expression must be addressed in a manner that does not constitute discrimination against religious nonbelievers … The free interplay of ideas on religious matters may include criticism and even hostility toward religious beliefs: “Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.”

During the two years that followed passage of the defamation resolution, various NGOs, including the Center for Inquiry and approximately 40 progressive Muslim groups, worked to overturn it. The Organisation of Islamic Cooperation, meanwhile, introduced it to the General Assembly twice, in 2009 and 2010, but support for it began to wane. It was eventually abandoned in favor of “General Comment No. 34, Article 19: Freedom of Opinion and Expression,” issued on July 29, 2011. Here are some excerpts:

Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions. (Paragraph 2)

Freedom of expression is a necessary condition for the realisation of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human right. (Paragraph 3)

States parties should put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression. (Paragraph 23)

Restrictions on the right of freedom of opinion should never be imposed. (Paragraph 49)

In Paragraph 48, the Commentary censures blasphemy laws:

Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant. … Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.

Paragraph 49 addresses freedom of expression concerning historical facts:

Laws that penalise the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.

This has been a very encouraging turn of events and gives us hope that open societies, honoring freedom of conscience and expression, will take root and flourish around the world. Meanwhile, Western liberal democracies that still have anachronistic blasphemy laws on their books should jettison them without delay as a signal to fundamentalist regimes that the West is serious about these freedoms.

Afghanistan’s Constitutional Confusions Over Blasphemy

Sayed Parwez Kambaksh

In October, 2007, Afghanistan security officials arrested Parwez Kambaksh, a 24-year-old Afghan journalism student, for electronically distributing to his classmates an Internet article criticizing the treatment of women under Islamic law. He was detained without a hearing for three months, during which he claims torture was used to elicit a signed confession. His trial was held behind closed doors, and he was denied representation. Fellow students and teachers testified that Kambaksh had routinely asked “difficult questions” in class. The tribunal deliberated for only four minutes before sentencing Kambaksh to death on a charge of “blasphemy and distribution of texts defamatory of Islam.”

Thanks to the international attention brought to bear on this case, Kambaksh was allowed to appeal his sentence. In October, 2008—a year after his arrest—a Kabul appeals court commuted his death sentence in favor of a 20-year prison term.

Not satisfied, international human rights groups continued working through diplomatic channels to obtain Kambaksh’s release. Finally, in August, 2009, President Hamid Karzai granted him “amnesty.” But judicial amnesty could not guarantee Kambaksh’s safety from radical Islamists. Fearing reprisals, he fled the country, and his whereabouts are now unknown.

Afghanistan’s constitution, ratified in 2004 under pressure from occupying military forces, appears to guarantee citizens a broad array of human rights. It is ostensibly more in line with the Universal Declaration of Human Rights (UDHR) than with Shariah, the religious law of Islam. It specifically guarantees the right to life and liberty, to privacy, to peaceful assembly, to freedom of expression, and—in cases of judicial proceedings—the appeal to formally codified statutes or binding precedents (stare decisis), the right to legal representation, and the right to a jury. Shariah guarantees none of these rights.

The constitutional principle most relevant to Kambaksh’s case is found in Article 34, which states that “freedom of expression is inviolable … Every Afghan has the right to print or publish topics without prior submission to the state authorities in accordance with the law.”

All well and good. The only thing missing from the constitutional inventory is freedom of conscience—the freedom to profess whatever beliefs one finds compelling. This is not a trivial omission, for under Shariah law, the penalty for apostasy, considered a treasonous defection from Islam, is death. Even where the death sentence is not imposed by the court, the accused may still be threatened with assassination by thugs who insist on strict application of Shariah. In 2006, Afghan-born Abdul Rahman, a convert from Islam to Christianity outside Afghanistan, was threatened with the death penalty for apostasy. Like Parwez Kambaksh, he was released as a result of international pressure and fled the country to avoid vigilante-style justice. Such cases are not uncommon, and Muslims worldwide are well aware of the severity of Shariah law where blasphemy and apostasy are concerned.

Though Shariah is not specifically mentioned in the constitution, Article Two states, “The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam.” Article Three draws out the implications of this: “In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.”

Could Article Three amount to a claim that the freedoms guaranteed by the constitution are not in fact contrary to the beliefs and provisions of Islam? No one who is knowledgeable about the two traditions could seriously support such an interpretation. Clearly, Article Three means that any of the enumerated freedoms that is not supported by Islamic law may be nullified.

But if these “beliefs and provisions of Islam” are important enough to be referred to—and so prominently—in the first three articles of the constitution, then why are they never enumerated, as are the specific guarantees of rights? At the very least, we might expect the authors to reference them. The “avoidance” of any such reference—which would certainly point us to Shariah—is conspicuous in a document that so plainly affirms Islamic law.

Unlike Western secular law, Shari’ah law includes a category of crimes that involve, among other things, privacy and free expression. The “Hadd”—one of three categories—are “claims against God” and include adultery, sodomy, lesbianism, and—signficiantly—blasphemy and defamation, the two charges brought against Parwez Kambaksh. The punishment prescribed by Shariah for these crimes is death.

The European Court of Human Rights has characterized such punishments as barbaric and cruel, and it has argued that Shariah is incompatible with a democratic state.

Afghanistan’s constitution is a political document reflecting the balance of power that existed when it was written. Whether it merely gives a nod to Shariah or creates an opening for it is unclear. What is clear is that the framers of this document made no attempt to reconcile Shariah with the principles of Western liberal democracies as expressed in the UDHR. Nor could such an effort have succeeded. But by ignoring the intrinsic incompatibility of the two traditions, the framers may have set their country up for an eventual constitutional crisis. Even if that does not happen, incidents like the arrest and detention of Parwez Kambaksh are likely to continue as long as adherents of Shariah law interpret the first three articles of the constitution as a license to suppress free expression. Because the constitution offers no unequivocal protection for dissenters, they are at the mercy of whatever faction happens to be in power. Fortunately for Kambaksh, international human rights organizations had some leverage with President Karzai, but Karzai himself has a poor record of human rights and cannot be depended on.

Perhaps the only hope for Afghan freethinkers like Kambaksh is continued international pressure on Afghanistan’s government to honor their constitution’s guarantees of basic human rights and to protect all citizens from fundamentalist thuggery.

Curious Correlations in the Vote on U.N. Human Rights Council’s Resolution 10/22: Combating Defamation of Religions

On March 26, 2009, the United Nations Human Rights Council (HRC) adopted Resolution 10/22, Combating Defamation of Religions.

Resolution 10/22 would at first appear to be supportive of human rights and freedom of religion. It deplores “negative stereotyping of religion” and “manifestations of intolerance and discrimination in matters of religion or belief.” All well and good, right? No one should have to suffer intolerance, discrimination, or violence because of their beliefs, religious or otherwise.

The problem with this resolution is that it makes no distinction between beliefs and the people who hold them. Its intent is not only to protect the adherents of certain beliefs but also to protect those beliefs themselves from ridicule, defamation, or even critical scrutiny. An important principle of open societies has been violated in this resolution: “People deserve respect. Ideas do not.”

At what point does critical scrutiny become blasphemy? The answer depends on the sensitivities of the believer. In many countries, any criticism of the reigning ideology can lead to imprisonment or even death. In recent years, depictions of the prophet Mohammad have provoked rioting, violent assaults, and fatwas. (See my story on Kurt Westergaard.)

Resolution 10/22 specifically cites defamation of Islam seven times, but never mentions Christianity, Judaism, Hinduism, or any other religion. It expresses “deep concern” that Islam is frequently associated with human rights violations and terrorism, and it deplores the targeting of religious symbols and venerated persons (e.g., Mohammad) in the print, audio-visual, and electronic media.

Though Resolution 10/22 is non-binding (at least for now), it still casts a heavy shadow on countries that are dependent on United Nations aid programs.  

This post is the first in a series where I will explore the implications of this resolution. For starters, I’ve gathered some data on the human rights records of countries that voted on the resolution (The vote was 23 to 11, with 13 abstentions.)

I consulted Freedom House to find 2009 human rights scores for all the countries that voted. (2009 was the year of the vote.)  I then color-coded these countries (blue = “against,” and pink = “in favor”) and sorted them three times—for political rights, civil liberties, and freedom of expression.

The results show that those countries supporting the resolution have low scores in political rights, civil liberties, or freedom of expression. (Note a source of possible confusion in these scores: Freedom House assigns highest numerical scores for best records in some categories and for worst records in others.) The results show that countries with the best human rights records were opposed to the resolution. The groupings are amazingly well-defined, with only Ukraine straying slightly outside its color block in the tables.