Religious Hate Speech Presentation_1

8/14/2019 Religious Hate Speech Presentation_1

http://slidepdf.com/reader/full/religious-hate-speech-presentation1 1/31

Dr. Jeroen Temperman, Erasmus University Rotterdam

Freedom of Expression & ReligiousSensitivities in Pluralist Societies:

A Human Rights-Based Rejection of CombatingReligious Defamation & A Conceptualization of the

Prohibition of Religious Hate Speech




Freedom of Expression & Religious Sensitivitiesin Pluralist Societies

Outline:

Historical background to problematique

State practice: defamation & hate speech Approach UN Political Bodies vs. Approach

UN Expert Bodies

European Convention SystemConceptualization of the prohibition ofreligious hate speech



Religious Sources

Monotheistic world religions & Blasphemy:

Tanakh

Christian Bible

Qur‟an




Leviticus 24:10 –23

“Now an Israelite woman‟s son, whose father was an Egyptian, went outamong the people of Israel. And the Israelite woman‟s son and a man ofIsrael 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 wasShelomith, the daughter of Dibri, of the tribe of Dan. And they put him incustody, till the will of the LORD should be clear to them. Then the LORDspoke to Moses, saying, "Bring out of the camp the one who cursed, and letall who heard him lay their hands on his head, and let all the congregationstone him. And speak to the people of Israel, saying, Whoever curses his Godshall 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 asthe native, when he blasphemes the Name, shall be put to death…" So Mosesspoke to the people of Israel, and they brought out of the camp the one whohad cursed and stoned him with stones. Thus the people of Israel did as theLORD commanded Moses” (English Standard Version, emphasis added).






The Holy Qur’an: 9:74 “They swear by Allah that they said nothing (evil),but indeed they uttered blasphemy, and they did itafter accepting Islam; and they meditated a plotwhich they were unable to carry out: this revenge oftheirs was (their) only return for the bounty withwhich Allah and His Messenger had enriched them! Ifthey repent, it will be best for them; but if they turn

back (to their evil ways), Allah will punish them witha grievous penalty in this life and in the Hereafter :They shall have none on earth to protect or helpthem” (tranl. Abdullah Yusuf Ali, emphasis added).




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 religiousfeelings of the community

„Islamic‟ blasphemy ban: tighter nexus with prohibition ofapostasy/conversion (away from Islam)




Exceptions: e.g. sec. 36 of Ch. 272 of theCriminal Code of Massachusetts

“Whoever wilfully blasphemes the holy name of Godby denying , cursing or contumeliously reproachingGod, his creation, government or final judging of theworld, or by cursing or contumeliously reproachingJesus Christ or the Holy Ghost, or by cursing orcontumeliously reproaching or exposing to contemptand 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 notmore than three hundred dollars, and may also bebound to good behavior” (emphasis added).




State Practice – PredominantlyChristian States

E.g .

UK: blasphemy ban intended to solely protect(Anglican) Church of England

UK‟s (abrogated) ban „exported‟ toCommonwealth nations

Ireland Scandinavia

Greece




State Practice – PredominantlyIslamic States

o Fairly ubiquitous

o No „dead letter‟ o Tight nexus between blasphemy andapostasy

o Blasphemy laws occasionally (ab)usedto crackdown on:• political dissidents (e.g. Iran)

• „heretic‟ religious minorities (e.g. Pakistan)




Pakistani Example

“Offences Relating to Religion” -Chapter ofPenal Code: defiling of the Qur‟an,Muhammad or other Islamic holy personagesis punishable with life imprisonment, death or

temporary imprisonment respectively.

Anti-Ahmadi laws (1974/1984)




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) 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”;

b) refers to, or addresses, any person, other than a wife of the Holy ProphetMuhammad (peace be upon him), as “Ummul-Mumineen”;

c) 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 “Ahle-baft”; … shall be punished with imprisonment of either description for a term whichmay extend to three years, and shall also be liable to fine ...

An Ahmadi who “in any manner whatsoever outrages the religious feelings ofMuslims” shall be punished with imprisonment or a fine.”




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 theInterplay Between FoR & FoE

Distinction:

UN Political Bodies

UN Expert Bodies




UN Political Approach: Counter All

Religious Defamation

Combating-Defamation Resolutions:

“…everyone has the right to hold opinions without interferenceand the right to freedom of expression, and that the exercise ofthese rights carries with it special duties and responsibilities andmay therefore be subject to limitations as are provided for bylaw and are necessary for respect of the rights or reputations ofothers, 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 Resolution61/164 of 19 December 2006, para. 9; and Human Rights Council Resolution 4/9 of 30 March 2007, para.10.




Conclusion Counter-Defamation Approach

(i) seeks to shift the emphasis from protection of the rights ofindividuals to protection of religions per se ;

(ii) introduces grounds for limitation of human rights, particularlyof the right to freedom of expression, that are not recognizedby 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 beliefso as to include a right to have one‟s religious feelingsrespected.




International Legal Approach: UN Expert

Bodies

o No right to have one‟s religion or belief at alltimes exempted from criticism, ridicule orinsult or a right to respect for one‟s religiousfeelings

o The „right of others to freedom of religion orbelief‟ is a legitimate ground for limitation but

high threshold criteria must be metE.g. Human Rights Committee, Malcolm Ross v. Canada ; Human Rights Committee, draft-GeneralComment 34 on Article 19; Joint Report A/HRC/2/3 by UN Special Rapporteurs on Freedom of Expressionand on Freedom of Religion




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 respectfor one‟s religious feelings; and

(ii) forms of criticism, ridicule or insult of religiondo 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 thirdparties‟ rights being undermined by publicexpression.




Conclusion UN Expert ApproachCrucial 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 acriterion to limit free speech;

less scope for governmental abuse.




European Court HR & ReligiousDefamation

3 objectionable trends:

i. Development of abstract notion of a „right not to be insulted inone‟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




(i) A ‘right not to be insulted inone’s religious feelings’?

“the right of citizens not to be offended in their religious feelingsby publications” (Gay News )

“the respect for the religious feelings of believers as guaranteedin 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 andbeliefs of others” (Murphy )




(ii) conflict between FoE & FoRBin abstracto?

E.g.: İ.A. v. Turkey:

Freedom of expression (publisher) restricted on the basis ofexisting ground for limitation (“right of others to respect fortheir 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




(iii) ECtHR sanctions

discriminatory laws

E.g. Wingrove & Gay News :

“It is true that the English law of blasphemy only extends to theChristian faith. … The uncontested fact that the law ofblasphemy does not treat on an equal footing the differentreligions practised in the United Kingdom does not detract from

the legitimacy of the aim pursued in the present context”




Way forward

Further conceptualization of the state duty (art. 20(2) ICCPR) toprohibit religious hate speech; more particularly:

To conceptualize the prohibition of „religious hate speech ‟ as a notion ofinternational law;

To identify legal benchmarks and factors that help determine thephenomenon 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.




Article 20(2) International Covenanton Civil and Political Rights

“Any advocacy of…religious hatred thatconstitutes incitement todiscrimination, hostility or violence

shall be prohibited by law.”




Conceptualization of ‘Religion

Hate Speech’ Prohibition

Scope:

Hate speech vis-à-vis a specificreligious group;

Religion-inspired hate speech.




Art. 137d Dutch Penal Code

“Any person who publicly, orally or inwriting or image, incites to hatred ordiscrimination against persons…onaccount of their religion or belief…may

be punished with imprisonment ofmaximally one year or a third categoryfine.”



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 toelicit action or response”

Hatred: “By hatred is meant intense emotions of opprobrium, enmity anddetestation towards a target group”

Incitement: “Incitement refers to the need for the advocacy to be likely to triggerimminent acts of discrimination, hostility or violence. It would be sufficient thatthe 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 theywould all be subject to limitations of Article 19, paragraph 3. As such, a restrictionthat is justified on the basis of article 20 requires also to comply with article 19,paragraph 3, which lays down requirements for determining whether restrictionson expression are permissible.”



Art. 137d Dutch Penal Code

“Any person who publicly, orally or inwriting or image, incites to hatred ordiscrimination against persons…onaccount of their religion or belief…may

be punished with imprisonment ofmaximally one year or a third categoryfine.”



Geert Wilders

“In 1945, Nazism was defeated in Europe.

In 1989, Communism was defeated inEurope.

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 thespeech?;

What is the legal significance of the type of medium used?;

What the legal significance of demographical figures (religiousadherence) and the level of public peace within society?;

May or should the public denial of indisputable atrocitiessuffered by (vulnerable) religious minorities be qualified as hatespeech?;

In the context of religion-inspired hate speech, what is the legalsignificance of the right to freedom of religion or belief?

Dr Jeroen Temperman Erasmus University Rotterdam

Documents

Religious Hate Speech Presentation_1