Blasphemy, Religious Insult and Hatred Laws Within a General Framework For Opting in and Out of Secular Law--Polycentric Possibilities and a View From Geneva

(Pix (c) Larry Catá Backer 2014)

Institutional religion has emerged in the early 21st Century as one of the most dynamic and ascendant forces of law and institutional organization both within and beyond states. It works within the systems that constitute the law based state and yet also serves as a legal system that is not bound by the peculiarities and predilections of law making by territorially constituted sovereign political states.  And indeed in some respect, offers a vision that challenges the fundational premises of the modern states system's core values and organizational premises. Backer, Larry Catá, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States (April 14, 2014). Cornell International Law Journal, Vol. 48 (forthcoming 2015).

In this respect it mimics that other great transcendent system that has emerged since the last quarter of the 20th century--economic globalization and its non-state governance systems. Indeed, and increasingly so, organized religion as extra national law rule based system is increasingly the only real threat to the hegemony of economic globalization as the foundation of extra national governance systems. While economic globalization offers the possibilities of a harmonization (or at least of coordination) as governance organs move toward  the unities of globalization (and the enterprise as the driving force of supra national governance, institutional religion offers a vastly different, though no less coherent, institutional conception of law, borders and control. Backer, Larry Catá, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering (July 28, 2008). Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008; Islamic Law and Law of the Muslim World Paper No. 08-44.

This post briefly considers one particular nexus point in the systemic interactions of secular and religious law systems within states--the institutions of the secular, political order, and principally the United Nations system, as a site within which secular and religious systems seek to institutionalize their sometimes incompatible visions for coordination or deference. While the language of the discourse tends to be international norms for human rights, the functional objectives are polycentric orderings among state based and non-state based law systems. The difficulties of managing these polycentric systems among states with distinct and incompatible relationships between their "secular" systems and religious law systems, was highlighted in a Lecture at the London School of Economics by Ms. Navi Pillay United Nations High Commissioner for Human Rights, "Freedom of Expression and incitement to hatred in the context of International Human Rights Law," given at the London School of Economics, February 2013, and set out below.

The ascendancy of institutional religion as a non-state source of law and governance, that is, as a state beyond states, mirrors the ascendancy of the economic enterprise as the foundational self-constituted non-state law and governance source, at least within globalization. In both cases the object is the construction of a framework within which actors may opt into or out of  (or apply simultaneously) more than one governance system to their activities. In the case of enterprises (and other secular non-state governance actors) the object is to create conditions for social systemic polycentricity, that is for movement between law based and societally sourced governance systems.   Backer, Larry Catá, On the Tension between Public and Private Governance in the Emerging Transnational Legal Order: State Ideology and Corporation in Polycentric Asymmetric Global Orders (April 16, 2012); Backer, Larry Catá, Governance Polycentrism -- Hierarchy and Order Without Government in Business and Human Rights Regulation (January 1, 2014). Coalition for Peace and Ethics Working Paper No. 1/1 (2014).

The objectives are different in constructing inter-systemic choice of law rules among secular and religious law systems. These occur within law systems but among "states" with quite distinct sovereign characteristics. See, Backer, Larry Catá, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States (April 14, 2014). Cornell International Law Journal, Vol. 48, 2015; Penn State Law Research Paper No. 20-2014. Americans, for example, have been obsessed about the means of developing rules for choosing between secular and religious law systems, that is for creating the conditions for legal systemic polycentricity mediated by choice of law rules masquerading as "rights to religious freedom." That, in essence is the core of the issue (nicely dressed up in the increasingly arcane language of American constitutional law) addressed in the various opinions in the Hobby Lobby case (Burwell v. Hobby Lobby Stores, Inc., No. 13–354. Argued March 25, 2014—Decided June 30, 2014). I have suggested the contours HERE.  The focus centers on rules for defining the conditions necessary for individuals and economic actors to opt out of a domestic legal order and into institutional theocratic systems, personal to the individual opting into them.

But this later issue, the legal systemicity of polycentricity in collisions between domestic legal orders and theocratic legal regimes is felt acutely all over the globe.  Those collisions, though, are encountered in a quite distinct legal context in many states--especially in those states that buttress  religious opt-out provisions (in the form of religious freedom rules) with secular protections of religious privilege through blasphemy (e.g., Pakistan HERE), insulting or defaming religion (e.g., Egypt HERE), and to a lesser extent inciting religious hatred laws (e.g., the U.K. Racial and Religious Hatred Act of 2006 HERE). For examples, see generally for blasphemy, U.S. Commission on International Religious Freedom, Prisoners of Belief: Individuals Jailed Under Blasphemy Laws (Policy Brief 3-11-2014), pp. 3-4; for insulting religion, U.S: Commission on International Religious Freedom, USCIRF Annual Report 2013 - Thematic Issues: Increasing adoption and enforcement of laws against blasphemy and defamation of religions (30 April 2013).

States have sought to use the international element--that is the effort to use the mechanisms of international law making to legitimate systems of blasphemy and religious insult laws at the domestic levels .

But the problem is not limited to national debates. Domestic blasphemy laws have an international counterpart: the UN Defamation of Religions Resolution. The Resolution has been proposed at the United Nations annually since 1999, first at the Human Rights Commission under the rubric of racism, and, since 2005, at the General Assembly. The Organization of the Islamic Conference (OIC)—an association of 57 Muslim-majority countries—supports a binding international covenant that makes defamation of religion a legal offense. Originally called a “Defamation of Islam” resolution, the Resolution responded to what the OIC considered a systematic campaign to denigrate Islam, which the OIC feared would spur violence against Muslims to a degree similar to pre-World War II anti-Semitic violence in Europe. (Asma T. Uddin, Blasphemy Laws in Muslim Majority Countries, The review of faith & international affairs 1:1-9, 5 (2011))

These approaches seek to universalize national self conception about the framework within which religious and political law systems may operate within a state and coerce its inhabitants, irrespective of religious affiliation.  It is not just Muslim Majority states that seek to bend international law to reflect and universalize their own self conception and the arrangements they have made for cobbling together extra national religious law systems with the political law systems of the sovereign states within which religious law seeks to operate.  The United States provides a nice distillation of its own self conception as the guiding premise for the international organization of secular-religion legal polycentricity, but one that draws lines differently from those of the states quoted above.

As Americans, religious freedom reflects who and what we aspire to be as a nation and people. Bound up inextricably with our country’s founding and development, enshrined in the First Amendment to our Constitution, religious freedom is our nation’s first freedom. A more comprehensive reason is confirmed by international law and documents like the 1948 Universal Declaration of Human Rights. Simply stated, freedom of religion is critically important because it enables people to follow what their conscience dictates. For this reason, it must be protected. People are entitled to religious freedom by virtue of their humanity. . . . In summary, the defense of religious freedom is both a humanitarian imperative and a practical necessity. To betray it is to betray human nature and well-being; to affirm it is to affirm our very humanity and its thriving. It is an indispensable freedom that merits our firm and dedicated support abroad, wherever it is threatened. (United States Cmmission on International Religious Freedom, 2014 Annual Report; pp. 2-3).

These movements highlight the context in which religious legal systems comprise one element of multi-legal systems that exist within the apparatus of a territorial state, but which are not of it, though seeking to be exercised through it. It is multiple in three respects.  First religious co-exist in any territorial space with the political law making apparatus of the Westphalian state. Second, religious systems, even when opt in is privileged within a state, compete against others with adherents in any state. Third, the asymmetry of jurisdictional boundaries ensures that

Thus polycentricity posits both vertical contests (secular domestic and international law systems and religious law systems) and horizontal contests (among distinct religious law systems seeking to compel obedience both within and without its own communities of believers--the essence of the law systemic basis of these religious law institutions).  Coherence within polycentricity in a territory, then seeks to use the mechanics of secular and religious systems to blend a set of rules for opting in and out of each in ways to that produce something that approaches legal coherence within a territory.  Yet, this work also highlights the tensions caused when the fundamental precepts of each collide within that governance apparatus. It also suggest the difficulties of navigating the issues raised by those who would use the state as an instrument for protecting religion or the structures for opting out of state law systems, and those who would  reduce the protections of religious values to those accorded to any non religious moral or ethical system.

Within these contests among national, international and religious legal systems, the United Nations has itself adopted an approach that is meant to produce a framework within which multiple law systems are recognized, yet all are framed within a structure that must reflect the superiority of the consensus mechanisms of the community of states represented by the U.N. system itself. This provides a direct mechanism for states to participate in the construction of opt-in/out and mediation structures that discipline the interactions of secular and religious law systems within the domestic legal orders of states, but they fail to recognize religions themselves as autonomous law actors, in the same way that other non-state governance organizations are also felt but not seen, for example multinational enterprises. Mediation suggests compromise.  And while the governance apparatus of the United Nations has hesitated to embrace fully the fundamental opt-out premise inherent in blasphemy and defamation of religion statutes, it has suggested the need to preserve a mandatory space where religious law may supplant or be substituted for secular law. The opt-out suggested by defamation and blasphemy statutes, of course, are not understood in the American sense of moving from secular legal to religious legal systems upon a declaration to that effect under standards set therefor in American constitutional law.  Rather, it refers to a substitution of religious for secular law systems triggered by certain events or ceded by the state-law system itself.  This is not so much polycentricity as a carving up of the fields of law, with a smaller polycentric space where multiple legal orders may simultaneous exist.

Perhaps the best example of this approach is evidenced in the recently and all but forgotten Rabat Plan of Action (5 Oct. 2012)  The Office of the High Commissioner of Human Rights Issued this Statement that nicely summarizes that official line:

Between Free Speech and Hate Speech: The Rabat Plan of Action, a practical tool to combat incitement to hatred

Following several workshops on the prohibition of incitement to national, racial and religious hatred organized by the United Nations in various regions of the world, a plan of action to prevent incitement to discrimination, hostility and violence, as outlined in article 20 of the International Covenant on Civil and Political Rights, was presented by internationally recognized experts at an event held in Geneva on 21 February.

"The remarkable collection of experts who have worked together on this issue over the past two years have fulfilled our hopes by reaching a consensus on how to effectively address the issue of incitement, and have devised a clear pathway to help us identify where to draw the demarcation line between freedom of expression and incitement” said the UN High Commissioner for Human Rights, Navi Pillay, in her opening statement.

“In recent years, incidents involving hate speech, negative stereotyping in the media, and even advocacy of religious or national hatred by public officials and political parties have resulted in killings of innocent people, attacks on places of worship and calls for reprisals. This spiral of violence has made it incumbent on us to renew the search for the correct balance between freedom of expression — which is among the most precious and fundamental of our rights as human beings — and the equally vital need to protect individuals and communities from discrimination and violence” she added.

The Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (PDF) recommends the adoption of comprehensive anti-discrimination national legislations with preventive and punitive action to effectively combat incitement to hatred, as well as the empowerment of minorities and vulnerable groups.

Evoking the complex equation between free speech and protection from incitement, Pillay acknowledged that views on this issue diverge greatly, with some calling for much tougher restrictions on permissible expression while others have maintained that freedom of expression should be near-absolute, pointing out that laws limiting speech are very often misused by authorities to muzzle critics and silence dissent.

The High Representative of the Alliance of Civilizations, Jorge Sampaio, welcomed the Rabat Plan of Action, which presents a set of practical recommendations to States, the UN system, political and religious leaders, the civil society and the media, and underlined the key role to be played by education to change mindsets.

“National and local authorities can exacerbate the severity of the speech, but they have also the potential to counter hate speech through positive speech and messages of tolerance and restraint” declared the UN Special Advisor on the Prevention of Genocide, Adama Dieng, when evoking the role of the State, religious and local authorities, education institutions and the media. Regarding the role of legislation, Dieng recognized that it was important but limited, and advised for a “multilayered approach for prevention”.

Among the key factors put forward in the Rabat Plan of Action to prevent incitement to hatred are the collective responsibility of public officials, religious and community leaders, the media and individuals, and the need to nurture social consciousness, tolerance, mutual respect, and intercultural dialogue.

The Plan of Action also contains a six-part threshold test for forms of speech that are prohibited under criminal law. The test takes into consideration: the context of incitement to hatred, the speaker, intent, content, extent of the speech, and likelihood of causing harm. Furthermore, education on pluralism can also contribute to prevent incitement to hatred, intolerance, negative stereotyping, stigmatization and discrimination on the basis of nationality, ethnicity, religion or belief, according to experts.

“It is the first time when a joint action to establish a synergy among the work of several human rights mechanisms, treaty bodies and special procedures, —including on freedom of opinion and expression, freedom of religion, and racism—independent experts, and non-governmental organizations, results in the adoption of a comprehensive plan of action on a cross-cutting important aspect of human rights law: the delimitation of boundaries between free speech and hate speech”, says Ibrahim Salama, Director of the Human Rights Treaties Division at OHCHR.

The Plan of Action presented today was adopted at a meeting convened by the UN Human Rights Office (OHCHR) in Rabat, Morocco, in October 2012. The Rabat meeting aimed at wrapping-up discussions and recommendations made since 2011 at four regional workshops to assess at national and regional levels legislative patterns, judicial practices and policies on incitement to national, racial or religious hatred.

The consultative process that led to the adoption of the Rabat Plan of Action involved three UN Special Rapporteurs (Frank La Rue, Special Rapporteur on Freedom of Opinion and Expression; Heiner Bielefeldt, Special Rapporteur on Freedom of Religion or Belief, Adama Dieng; Mutuma Ruteere, UN Special Rapporteur on Racism, Racial Discrimination, Xenophobia and Related Intolerance), Agnes Callamard, Executive Director of Article XIX, as well as 45 experts from different cultural backgrounds and legal traditions. Regional workshops were held in Europe (Vienna, 9 - 10 February 2011), Africa (Nairobi, 6- 7 April 2011), Asia and the Pacific (Bangkok, 6 - 7 July 2011), and the Americas (Santiago, 12 - 13 October 2011).

Building on the Rabat Plan of Action, the three UN Special Rapporteurs involved in the regional consultations will co-host in Geneva, on 22 February, a seminar to identify policy options for stopping and preventing incitement to atrocity crimes in situations where violence is imminent.

21 February 2013

The mediation derives both from a reluctance to provide legal cover for blasphemy laws but a willingness to broaden incitement from a focus on the content of the speech to its consequence, and from an objective to a subjective standard.   Thus,the effect can be to refashion blasphemy as incitement through the expedient of the consequences of the speech on those who hear.  And when that "hearing" is tended to infinity, a possibility with electronic and internet communication, it subjects words and actions to the discipline of any religious community within earshot.  It is, indeed, difficult to criticize religion without inciting reaction among its believers and suggesting defamation (which itself incites). But see the discussion Rabat Plan ¶¶14-19. And thus the focus of the Rabat Plan was on socialization--cultural and political education to discipline all sides.  But that itself may be problematic where religious law itself makes comity difficult.  The difficulty is of producing coherence is itself recognized.

While the concept of freedom of expression has received systematic attention in international human rights law and in many national legislations, its practical application and recognition is not fully respected all around the world. At the same time, international human rights standards on the prohibition of incitement to national, racial or religious hatred still need to be integrated in domestic legislation and policies in many parts of the world. This explains both the objective difficulty and political sensitivity of defining this concept in a manner that respects the freedom of expression. (Rabat Plan of Action ¶ 32).

Of course, freedom of expression is merely one aspect of the wider polycentric difficulty. But if the core structures of coherence within plural societies advancing rights under distinct legal traditions cannot be fashioned, the rest will be harder still. But such coherence may be impossible to attain where the fundamentals--a consensus structure on the relationship between the legal structures of religion and those of the political state, and the mixing of populations with distinct allegiances to extra national law systems also clothed in religious privilege all of which claim not just primacy but the authority to discipline non believers--remains elusive.

That elusiveness is brought out quite nicely in the lecture at the London School of Economics by Ms. Navi Pillay United Nations High Commissioner for Human Rights, given February 15, 2013 and focusing on her interpretation of the Rabat Plan of Action.  Most interesting is the tension, largely unresolved, between the quite laudable effort to protect individuals against incitements to hatred (E.g., Antwerp rally features call to ‘slaughter the Jews’) while permitting open and critical discussion of religion (Christians Found Guilty of Proselytizing Muslims).  While the lines drawn in Geneva are quite delicate, and easily perverted, they represent a step toward what might be a workable system of protection of individuals and substantially less protection for the ideas and institutions of religion.  That, anyway, is the form fo the discussion.  The realities may be quite distinct depending on the constitutional traditions of a state and its religious mix.

Freedom of Expression and incitement to hatred in the context of International Human Rights Law
London
15 February 2013


Ladies and Gentlemen,

I'd like to thank you for giving me the opportunity to speak about this very important, but at the same time extremely controversial, topic.

Hate speech, claims of hate speech, and violent reaction to perceived hate speech have in the past decade created enormous friction across the globe. This storm of controversy may reflect the kind of world that lies ahead in this 21st century, when we will increasingly live side by side with people whom we perceive as different from ourselves. More than half the world's population now lives in cities; and this proximity, together with migration and the Internet, means that the risk of stepping on someone’s toes — of saying or doing something that exceeds someone’s bounds — is at a new peak today.

There is an established framework of international law on this topic. But clearly Member States have indicated a great need of better guidance on how it should be implemented. And this is a very delicate matter to address.

Free speech is vital to human dignity. It is the cornerstone of every democratic society, because it is an enabling right — a right that allows individuals to argue for their enjoyment of all other rights, from fair trials and free elections to decent living conditions. So as a matter of fundamental principle, the limitation of any kind of speech or expression must remain an exception.

On the other hand, speech can be an incitement to action — in some cases, very violent and hateful action. I recall a case that I heard in 1998, when serving as a judge on the International Criminal Tribunal for Rwanda. This was really a worst-case scenario: people working at a radio station and a newspaper had quite outright called for massacres, using very unambiguous words. Because of cases like these, where speech can be clearly linked to wrongful action, international law requires states to ban certain speech that undermines the rights or reputation of others, and it also, on certain conditions, permits speech to be prohibited on the basis that this is necessary to protect public order, public health or morals.

There are very forthright views on this question of how to balance freedom of expression with the need to prohibit hate speech. Some argue that speech and expression should never be limited at all. They point out — and this unfortunately is true — that laws limiting speech are very often misused by authorities to muzzle critics and silence minorities. A number of other people, on the contrary, argue for far more control of speech. They seek more norms, to protect much more extensive areas of human activity from criticism or ridicule or scrutiny.

What I intend to do today is first review the key international human rights law standards regarding hate speech, and look at how these have been interpreted by the international bodies that oversee their implementation. I'll then outline two significant challenges that face us in respect of those international norms. Thirdly, I would like to discuss recent moves to provide more expert guidance regarding the application of these existing international laws. This guidance results from a rather remarkable process that my Office facilitated in 2011 and 2012; this has culminated in a Plan of Action on the prohibition of advocacy of national, racial or religious hatred which constitutes incitement to discrimination, hostility or violence. The document, which was adopted by a number of internationally recognised experts in the matter, will be launched in Geneva in one week's time.

The intention of my Office in facilitating this guidance has been to foster more effective implementation of the international prohibition on incitement to hatred, while deterring laws and practices that would undermine freedom of expression. As I'm sure you appreciate, the law alone cannot resolve very complex social and cultural questions of this kind, and the balancing must be done by judges and the courts, via a responsive body of jurisprudence. However, I very much hope that the guidance that has been produced will be of assistance in shaping a calm and concerted approach to this very inflammatory topic.

I.

The International Covenant on Civil and Political Rights, in its Article 19, guarantees the right to freedom of opinion and expression. But unlike, say, the law regarding genocide, torture, slavery and crimes against humanity, the right to freedom of expression is not absolute. Thus Article 19 of the International Covenant on Civil and Political Rights allows certain restrictions when they are necessary for respect of the rights or reputations of others, or for the protection of national security, public order or of public health or morals.

In addition, article 20 of the Covenant actually requires the prohibition of propaganda for war, and “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.

These two Articles of the Covenant, 19 and 20, are distinct and even in tension – a fact that is evident in the drafting history. They were kept separate to highlight that Article 19 guarantees the right to freedom of expression, while Article 20 actually imposes an obligation upon States to prohibit certain kinds of speech. However, it was also decided to place these Articles next to each other to emphasize their close relationship.

The Human Rights Committee – the UN treaty body which oversees the implementation of this Covenant – seeks to balance these two articles, so that individuals may be protected against incitement to hatred while the authorities maintain the least possible interference with freedom of expression. The Committee has stated in its General Comment 34 that any measure seeking to implement article 20.2 must satisfy the test for restrictions on freedom of expression under article 19.3. This was confirmed in the case of Ross vs. Canada. An author and teacher who promoted anti-Jewish views in publications and in the classroom was dismissed from his post. He claimed violation of articles 18 and 19 of the ICCPR. The Committee found no violation of the Covenant and also recognised both the relevance of restrictions to freedom of expression and the permission to act under Article 20 of the ICCPR.

A second instrument, the International Convention on the Elimination of Racial Discrimination or ICERD, which was adopted by the General Assembly in 1965, was actually the first international treaty to directly deal with the question of hate speech. Article 4 of the ICERD requires states to work to eradicate all incitement to racial discrimination. Dissemination of ideas based on racial superiority or hatred; acts of violence or incitement to such acts against any race or ethnic group; and the provision of assistance to racist activities must be declared punishable by law.

At the time, some States voiced strong opposition to the prohibition of mere ‘dissemination of ideas’ based on racial superiority or hatred – presumably concerned about its impact on freedom of expression. Views also differed on whether criminal law prohibitions on incitement were appropriate or whether a focus on education was preferable. Some of these concerns later resurfaced in the form of reservations to that Convention. And these dormant tensions of some fifty years ago clearly still have resonance today.

In reviewing reports prepared by States, the CERD Committee has emphasized the importance of prohibiting incitement to hatred. For example, the Committee consistently reminds states of their obligation to ban organizations, including mass media, which promote and incite racial discrimination. In one instance, the Committee recommended that the State consider extending the crime of incitement to cover offences motivated by religious hatred against immigrant communities. The Committee has also recommended the introduction of provisions designating racist motivations for crimes – and, more recently, motivations of religious hatred – as aggravating circumstances. In general, CERD emphasizes that hate speech can contribute to racial violence, and even to genocide.

CERD’s General Recommendation 15, written in 1993 recalls that the drafters regarded Article 4 as central to the struggle against racial discrimination in view of ‘a widespread fear of the revival of authoritarian ideologies’. The Recommendation strongly affirms that freedom of expression is compatible with prohibiting ideas based on racial superiority or hatred. Responding to some States’ claims that it is inappropriate to declare an organization illegal before its members have promoted or incited racial discrimination, CERD finds that the paragraph places a “burden upon such States to be vigilant in proceeding against such organizations at the earliest moment.”

In the case of The Jewish Community of Oslo v. Norway, the Committee considered a case of a group known as the ‘Bootboys’ which organized and participated in a march in commemoration of the Nazi leader Rudolf Hess. The leader of the march, Mr Sjolie, made a speech in honour of Rudolph Hess. The Supreme Court of Norway found that penalising approval of Nazism and prohibiting Nazi organisations would be incompatible with freedom of speech. However, CERD argued that Mr Sjolie’s speech contained ideas based on racial superiority or hatred, and that the deference to Hitler and his principles must be taken as incitement to racial discrimination, if not violence. It concluded that Mr Sjolie's acquittal by the Norwegian Supreme Court violated the Convention.

Clearly there is a complex relationship between freedom of expression and prohibition of hate speech, which requires assessment on a case-by-case basis. And this is rendered even more delicate by the distinct approaches to incitement to hatred in the two major treaties. The Convention on the Elimination of Racial Discrimination offers more far-reaching protection against incitement to hatred, albeit within the more limited “racial” scope of the treaty, and lists prohibitions in considerably more detail than the Covenant. Consequently, practice under ICERD has tended to apply the prohibition on incitement more broadly, in comparison to the Human Rights Committee’s practice.

II.

I'd like now to address two very significant challenges to implementing these two core legal instruments. The first challenge is one of definition.Intolerance and even intense dislike of others may in some contexts be quite legitimate emotions — for example when we criticize people who have oppressed vulnerable persons. So when is the expression of hatred permissible, and when is it prohibited? What form may that expression take? What is the threshold?

Last August the Committee on the Elimination of Racial Discrimination held a thematic discussion on racist hate speech where this question was discussed. It was suggested that severity should be a key factor. Severity could be determined by examining who made the statement, what was in the statement, and the timing of the statement. How likely was harm, and how imminent? Was the speaker in a position of authority, with leadership of millions, or a lone individual?

The suggestion that intent also be viewed as an important factor was more controversial as under the CERD Convention the mere dissemination of certain material is prohibited. There is no requirement to demonstrate intent in relation to discrimination, so this has the potential to challenge a number of assumptions under human rights law. In the ICCPR, however, the element of “advocacy” in article 20 could be understood as requiring intent. The case of Faurisson vs. France concerned the case of a university professor who was dismissed and later fined under the French Gayssot law after alleging that the gas chambers at Nazi concentration camps had not been used for the extermination of the Jews. The Human Rights Committee ruled in favour of France, and although it did not examine the relevance of Article 20, several individual opinions expressed concern that the Gayssot law did not require intent on the part of the author in order to hold him liable.

A third factor relevant to determining the prohibition of certain speech is the context in which the speech is made. Complaining in a national newspaper that immigrants occupy jobs formerly given to natives might be a fair observation.

However, making the same statement outside an immigrant’s home might constitute incitement to hatred. One context-related indicator to indicate whether speech should be seen as incitement to hatred could be a history of violence and persecution.

Causation is an interesting point. Inciting an act is not the same thing as causing one. And it's possible to argue that incitement should be punishable even if no-one has followed it up with action. Still, when assessing whether speech incites hatred, Courts will often look for causation factors. In the case of Ross vs. Canada for instance, the Supreme Court of Canada noted that a “poisoned environment” had been created within the relevant school board, possibly because of Ross' publications. Similarly, in the Faurisson vs. France case, it was noted that Faurisson's statements “were of a nature as to raise or strengthen anti-Semitic feelings”.

Another key suggestion is to draw a clear line between expression targeting ideas — which is to be protected — and on the other hand, abusive expression that targets human beings, which may not be protected. The UN Human Rights Committee has clarified that the “mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties”. Consequently, the Committee has expressed concern regarding laws on issues such as lèse majesty, desacato, disrespect for authority, disrespect for flags and symbols, defamation of the head of state and the protection of the honour of public officials.

So as you see, sometimes it may be quite difficult to distinguish between hate speech and speech that is merely offensive, for there is no firmly agreed definition of hate speech in international law. And perhaps neither should there be one. Instead, we have a number of slightly different regional and national approaches. Some countries protect hate speech unless the speech actually incites imminent violence; while on the other end of the spectrum there are stringent restrictions on speech in some countries in the context of Holocaust denial, or in other countries for the protection of religious doctrine or symbols.

Finding a strong, clear and common definition of hate speech, if at all desirable, is further complicated by the fact that ICERD and the ICCPR address the issue differently.

Whatever the applicable regime may be, I purport that it is essential to make a careful distinction between forms of expression that should constitute an offence under criminal law; forms of expression that are not criminally punishable but may justify a civil suit; and forms of expression that do not give rise to sanctions but may raise concerns in terms of tolerance, civility and respect, such as racism in sports.

This brings us to our next challenge, which centres on claims of blasphemy and the concept of defamation of religion.

It will have escaped none of you that within the international human rights system, in the past 25 years there have been repeated and vigorous challenges to various forms of speech on the grounds that they offend certain believers and belief systems.

Central to this movement has been use of the term ‘defamation of religion’. For more than a decade, the UN Commission on Human Rights and its successor body, the UN Human Rights Council, were deadlocked in a debate on this concept. This stalemate has now come to an end, and I propose now to discuss exactly how a way out of the conflict was sought, towards firmer, and commonly agreed, ground.

The position of my Office has been clear throughout. Human rights law protects individuals and groups, not belief systems. You cannot defame a religion. In fact, it should be possible to scrutinise, openly debate, and even harshly criticise belief systems, opinions, and institutions, including religious ones. This is absolutely intrinsic to the right to freedom of expression. Moreover, the Human Rights Committee has held that blasphemy laws are incompatible with the Covenant, since they have a stifling impact on the enjoyment of freedom of belief, as well as healthy dialogue and debate about religion.

So the position of my Office has been that there is no need for additional legislation protecting belief systems from defamation, because individuals are sufficiently protected under existing norms, and the concerns of those who feel offended in their religious or other values can adequately be addressed under the existing framework. What we need is proper guidance for implementing these standards, combined with a sufficient degree of political commitment on all sides of the debate.

III.

In March 2011, the Human Rights Council broke its deadlock regarding this matter with Resolution 16/18. This resolution, which was unanimous, addresses negative stereotyping, discrimination, incitement to violence, and violence against people based on religion or belief. It reinforced the relevant provisions from international human rights treaties and set out concrete actions to fight these scourges. In doing so, the Human Rights Council managed to move the issue away from the huge storm of public emotion into an inter-governmental body. And whatever you may think of inter-governmental bodies, that to me was a milestone moment.

Already before the adoption of this landmark resolution, I had initiated a process with a view to bring clarity to the debate. My Office took the initiative of organising a series of high-level expert workshops, in the different regions of the world, in order to examine legislations, jurisprudence, and national policies on the related issues.

A total of five expert workshops were held in 2011 and 2012, in Vienna, Nairobi, Bangkok, Santiago and Rabat. These workshops involved three UN Special Rapporteurs — on Freedom of Opinion and Expression, Freedom of Religion or Belief, and Racism, Racial Discrimination, Xenophobia and Related Intolerance — as well as 45 experts from different cultural backgrounds and legal traditions. They recognised the importance of freedom of expression, but also signalled concern about rising intolerance, discrimination and violence on racial and religious grounds in many parts of the world. The proceedings also shed light on areas of insufficient national legislation, as well as new, vague and unclear provisions that have been introduced, which are open to misuse.

I learned that many Governments, in response to current challenges, have introduced new, punitive measures on speech that go beyond the prohibition of incitement to hatred as proscribed in the ICCPR. In particular, participants provided examples of the negative impact of anti-blasphemy laws; problems relating to curbing freedom of information and the use of the Internet; examples of harassment of journalists and human rights defenders; and instances where members of minorities are persecuted through the abuse of vague or counter-productive legislation.

The workshops culminated in an expert meeting in Rabat in October 2012 that adopted a detailed, powerful, and comprehensive Plan of Action. The conclusions and recommendations of Rabat explore the full potential of our existing international law, when that law is correctly understood and implemented. In essence, they offer a set of tools to all stakeholders — states, parliaments and judiciary, civil society and indeed also regional and inter-national organisations — to help better implement the existing international human rights norms.

The Plan of Action also recommended that security forces, police and those involved in the administration of justice be better trained regarding the prohibition of incitement to hatred. It highlighted the need to set up a public policy and regulatory framework that promotes pluralism and diversity of the media, including new media. And it suggested that political parties adopt and enforce ethical guidelines regarding the conduct of their representatives, particularly their public speech.

Rabat also defines six thresholds that must be met for speech to be criminally prohibited. They include context; the speaker's standing; intent to advocate or incite; content; scope or extent; and imminence.

Rabat also points out that criminal sanctions related to unlawful forms of expression should be seen as "last resort" measures, to be applied only in strictly justifiable situations. Civil sanctions and remedies should also be considered, including financial and non-financial damages, along with the right of correction and the right of reply.

IV.

Thus we have arrived at the position that we do not in fact need more norms — or fewer norms, for that matter. We have the necessary framework to measure permissible restrictions on freedom of expression, and to consider the prohibition of incitement to hatred. What we need is better understanding of those tools as well as a stronger commitment to implementing existing norms and standards.

I cannot claim that Rabat has for ever resolved the delicate equation between free speech and protection from incitement to hatred. And I cannot claim either that we have achieved universal consensus regarding the protection, or non-protection, of religions. However, I do think that the Rabat Plan of Action marks a very significant process that has educated all of us in ways to better balance respect for the deeply important right of free expression with the prohibition of incitement to hatred.

But Rabat will not, alone, achieve this task of constructing a solid framework for a society of diversity and tolerance. For no law could. Legislation is just one part of the larger toolbox we need to respond to the challenges of hate speech in a society where old boundaries are crumbling.

We need to create greater empathy and intercultural dialogue. And clearly greater involvement of media would be of immense use in this respect. Broadcast and print media must adopt codes of conduct to prohibit the use of racist terms and to stop reporters from relying on stereotypes, including gender stereotypes. They can commit to ensuring a diverse workforce, reporting factually and progressively on sensitive topics, and ensuring that a proper complaints mechanism is set up. And digital media should also seek to address these issues.

Can people of different backgrounds, history and religion live together, and remain true to themselves without pushing others away? In a world where we all encounter more people from other cultures, or who hold very different opinions, it may be a very real challenge to learn to respect fully each others' beliefs and choices. It is my hope that the Rabat Plan of Action will help boost the full implementation of widely accepted international human rights obligations, and so help to break the world's many vicious cycles of hatred and vengeance.

Thank you.