Today the UN Human Rights Council is considering the latest report from the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt. It focuses on the relationship between the right to freedom of thought, conscience, religion or belief and the right to freedom of opinion and expression.
Here are some key extracts from the report:
In political discussions, legal debates and journalistic interviews, the Special Rapporteur regularly faces questions concerning the relationship between freedom of religion or belief and freedom of opinion and expression. Often, such questions reveal a sceptical attitude. The assumption seems to be that these two rights do not easily fit together. For instance, when people wonder how it might be possible to reconcile freedom of religion or belief and freedom of expression, such wording displays a perception that the two rights stand in essential opposition to each other.
The underlying idea may be that, whereas freedom of expression facilitates frank and open discussions, including satirical provocation and caricatures that may be offensive to some, freedom of religion or belief, by contrast, would more likely be invoked against excessive provocation relating to religious issues. In short, while freedom of expression seems to signal a “green light” to all sorts of provocation, freedom of religion or belief appears to function more like a “stop sign” to provocation – or such is the perception. In 2006, the previous Special Rapporteur, in a joint report, stressed that “freedom of religion primarily confers a right to act in accordance with one’s religion but does not bestow a right for believers to have their religion itself protected from all adverse comment.”
The positive interrelatedness between freedom of religion or belief and freedom of expression is not only a theoretical postulate. More importantly, the two rights mutually reinforce each other in practice. This insight should also guide the implementation of Human Rights Council resolution 16/18 on combating intolerance, negative stereotyping, stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief, which addresses both rights explicitly.
With regard to freedom of religion or belief, States should create favourable conditions for everyone to be able to enjoy this right without fear and without discrimination. This requires, inter alia, taking measures to eliminate all forms of intolerance, stigmatization and negative stereotyping of persons based on their religion or belief, as well as adopting effective policies to prevent acts of violence or incitement thereto, as requested in resolution 16/18.
Rights holders are human beings, who may exercise these freedoms as individuals and in community with others. While this may sound like a truism in the context of human rights in general, the right to freedom of religion or belief has sometimes been misperceived as protecting religions or belief systems in themselves. This misperception is the source of much confusion, as it obfuscates the nature of freedom of religion or belief as an empowering right. Ignoring that may lead to the wrong assumption of an antagonism between freedom of religion or belief and freedom of expression. Thus, it may warrant highlighting that freedom of religion or belief protects believers rather than religions or beliefs.
The wording of article 18 of the Covenant differs from that of article 19 in that it explicitly enshrines everyone’s freedom “to have or to adopt a religion or belief of his choice”, thus using an equivalent of the right to “change”, as contained in article 18 of the Universal Declaration of Human Rights.
Blasphemy laws
In its general comment No. 34, the Human Rights Committee stresses that “prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances
envisaged in article 20, paragraph 2, of the Covenant” (para. 48). To exemplify this clarification, the Committee underlines that prohibitions cannot be permitted in order “to prevent or punish criticism of religious leaders or commentary on religious doctrines and tenets of faith”. The Rabat Plan of Actions likewise criticizes blasphemy laws and finds it counterproductive at the national level as they may result in de facto censure of all interreligious and intrareligious dialogue, debate and criticism, most of which could be constructive, healthy and needed.
Blasphemy laws typically single out certain religions for special protection, thus not only encroaching on freedom of expression but also on freedom of religion or belief, in particular of members of religious minorities, converts, critics, atheists, agnostics, internal dissidents and others. Abundant experience in a number of countries demonstrates that blasphemy laws do not contribute to a climate of religious openness, tolerance, non-discrimination and respect. To the contrary, they often fuel stereotyping, stigmatization, discrimination and incitement to violence.
Obviously, satirical comments on religious issues or depictions of religious figures may sometimes offend the feelings of believers. Those who feel offended are free to voice their anger publicly and call for a change in attitudes. This can also become an issue for interreligious communication and public debates. Subjective feelings of offensiveness, however, should never guide legislative action, court decisions or other State activities.
The employment of criminal sanctions against expressions which do not advocate for violence or discrimination but which are deemed “blasphemous” cannot play a productive role in such endeavours, and such criminal sanctions, wherever they exist, are incompatible with the provisions of freedom of religion or belief and freedom of expression.
Unclear anti-hatred laws
While legal sanctions must not be employed to protect the religions or belief systems per se against adverse comments, such sanctions may be necessary to protect human beings against incitement to acts of hatred, as reaffirmed in Human Rights Council resolution 16/18 and the Rabat Plan of Action. Indeed, article 20 (2) of the Covenant explicitly calls upon States to prohibit any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, which implies, inter alia, adopting adequate legislation. However, State practices in this regard vastly differ and often reveal a lack of consistency. Sometimes failure to act on “real” incitement cases, on the one hand, and overzealous reactions to innocuous cases, on the other, exist simultaneously, thus creating a climate of impunity for some and a climate of intimidation for others. In practice, this often leads to the non-prosecution of perpetrators belonging to the State religion and to the persecution of members of religious minorities under the guise of anti-incitement laws.
Domestic laws which prohibit incitement to hatred are often vaguely defined. Sometimes incitement to discrimination, hostility or violence is amalgamated with broad legislative provisions against creating “discord” in society, undermining the unity of the State, or endangering interreligious “harmony”. Such broad concepts typically remain undefined, opening the way to arbitrary application of such laws, often to the disadvantage of those who would actually need protection from incitement to acts of hatred, including members of religious minorities, dissenters, critics, converts, atheists and others. In fact, they may even suffer additional intimidation owing to unclear legislation and its inconsistent, arbitrary application.
Recommendations
Against the background of these observations, the Special Rapporteur would like to make the recommendations set out below.
1. Recommendations mainly addressed to States
- Legislators, judges and policymakers should implement laws and policies based on the understanding that the rights to freedom of religion or belief and to freedom of opinion and expression are complementary.
- States should not require anyone to register or reveal their religious affiliation in official documents, such as passports or identity cards.
- States, in collaboration with relevant stakeholders, should develop comprehensive policies to combat intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against persons based on religion or belief further to Human Rights Council resolution 16/18.
- State representatives should always speak out quickly, clearly and publicly against any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence.
- In line with Human Rights Committee general comment No. 34 and the Rabat Plan of Action, States that still have blasphemy laws should repeal them, as such laws may fuel intolerance, stigmatization, discrimination and incitement to violence and discourage intergroup communication.
- States should prevent or overcome a climate of impunity, in which intolerant groups may feel encouraged to commit acts of discrimination, hostility or violence against persons based on their religion or belief.