Protection Against Religious Hatred under the United Nations ICCPR and the European Convention System

Chapter 15
Protection Against Religious Hatred under the United Nations ICCPR and the European Convention System

Jeroen Temperman

Introduction: The Emerging Counter-Defamation Discourse

The recent defamation saga within the political (‘Charter-Based’) bodies of the UN raises the question of whether UN treaty-based bodies (particularly the Human Rights Committee), consisting of independent human rights experts, and regional human rights systems (the focus here will be on the Council of Europe and its European Court of Human Rights) have found more convincing ways of dealing with the interplay between freedom of expression and freedom of religion or belief. From 1999–2005 the UN Commission on Human Rights adopted the so-called ‘Combating Defamation of Religions’ resolutions, a trend continued in 2007 and 2008 by its successor, the Human Rights Council.1 In general terms, these resolutions are annually proposed by (a member state on behalf of) the Organization of the Islamic Conference and are, as a rule, not unanimously adopted – the opposition can be considered rather significant – with states voting against typically consisting of a list of European states, plus Canada and the United States and some of the Pacific states (obviously, depending on the composition of those bodies at the time of voting). Whilst some UN member states have expressed concern about those resolutions’ one-sided focus on the defamation of Islam, it would appear that the real problem with these resolutions is their overall tenor: the protection of religions as a concern of the international community. ‘Combating defamation of religion’ is sensu stricto not a human rights issue. Human rights law is not interested in religions per se. Human rights law is not concerned with their doctrines, their survival or their reputation. One might argue that defamation of religions is indirectly relevant to the human rights discourse to the extent that it can be maintained that defamation ‘could lead to social disharmony’.2 However, that claim cannot be substantiated in abstracto for there are different types and levels or degrees of defamation. For instance, there would appear to be a crucial difference between the advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, and causing offence, be it in the form of criticism, ridicule or insult of religion, by denying religious doctrinal views, or indeed by blaspheming. Any human-rights-based approach tackling the issue of religious intolerance should take such distinctions into account. Failure to do so not only jeopardizes the fundamental right to freedom of expression but also the core right to religious freedom itself, for the simple reason that one person’s way of exercising a religion may be offensive in the eyes of another. It is argued that from the fact that this is bound to happen all the time in a pluralist society we should not conclude that states must interfere, with a view towards curtailing all potentially defamatory expressions. People taking offence is too subjective a criterion to be used as a ground for limiting fundamental rights. The challenge we are facing is to identify neutral and objective indicators on the basis of which we can assess whether or not state interference is justified.

The European Court of Human Rights and the Objectionable Notion of ‘Respect for Religious Feelings of Citizens’

The European Court of Human Rights seems too preoccupied with the risk that people may take offence at certain public expressions that deal with the topic of religion. In a series of blasphemy/defamation cases, the European Court has developed a citizen’s right to respect for one’s religious feelings. In this jurisprudence, the mere possibility that some people may be offended by a certain film or publication frequently trumps the fundamental right freely to express oneself. It would appear that the Court fails to distinguish between forms of criticism or insult that do actually jeopardize the rights and freedoms of others, and forms of defamation that – although perhaps deplorable in a ‘moral sense’ – do not.

A notorious example is the European Court’s ruling in Otto-Preminger-Institut v. Austria, which revolved around the (satirical) film Das Liebeskonzil (‘Council in Heaven’),3 directed by Werner Schroeter. The Austrian authorities ordered the seizure and forfeiture of the film as a result of which planned showings in a cinema could not take place. The Austrian Court sanctioned these interferences as it deemed the content of the film to be within the definition of the criminal offence of disparaging religious precepts. The film, by portraying God as a senile old man among other things, would undoubtedly insult religious people if they were to watch it. From a human rights perspective, however, the key question should be formulated as: is it absolutely necessary to interfere with this screening (and consequently with the fundamental right to freedom of expression) in order to uphold the religious rights of others? It is submitted that it was very unlikely – given the tone of the film, the scale of the screenings, and also given the state of society as such – that the screening of this film would have affected anyone’s right freely to have or to adopt a religion or belief or freely to practice that belief. In this particular instance the majority religion was satirically discussed by the film: the European Court uses that argument to underline the risk that many people might be insulted by the screening of this film. One could easily reverse the argument: one might expect the majority to have a thicker skin when faced with ridicule or insult; it is when minorities are attacked that we should beware of demonization, marginalization, and possibly instances that could ultimately lead to human rights violations. It would also appear that there was no intention on the part of the cinema manager or of the makers of the film to incite hatred towards religious believers. Also, it would seem rather unlikely that the actual screening would have led to instances of discrimination or violence against religious believers. The possibility of some people taking offence and even the possibility of some people reacting to the screening in terms of protests – or otherwise – are in themselves not sufficient to deem interference absolutely necessary (it goes without saying that within the context of the objective test regarding the prohibition of advocacy of religious hatred that incites violence or discrimination, to be applicable, the violence or threats of violence must be aimed at the religious groups (usually minorities or otherwise vulnerable groups) that are also attacked in the speech or publication in question. Violence or threats of violence aimed at the person behind the publication or speech are not relevant within the context of the prohibition of hate speech). The European Court, however, reasoned that ‘respect for the religious feelings of believers as guaranteed in Article 9 [of the European Convention on Human Rights] can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration’.4 The European Convention on Human Rights, however, guarantees no such right to have one’s religious feelings respected by others. The three dissenting judges shared that opinion as well: ‘The Convention does not, in terms, guarantee a right to the protection of religious feelings. More particularly, such a right cannot be derived from the right to freedom of religion, which in effect includes a right to express views critical of the religious opinions of others’.5 The only reason why the European Court perceives a need to balance two seemingly conflicting rights is because it takes a questionable view of the right to freedom of thought, conscience and religion as a right not to be insulted in one’s religious feelings.6 This is not to say that the right to freedom of expression can under no circumstances be restricted in the interest of other people’s right to thought, conscience and religion proper. In the European Court’s own words: ‘in extreme cases the effect of particular methods of opposing … religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them’.7 But the European Court does not pose or answer the question whether in the present case such ‘extreme circumstances’ were present. Such instances would clearly lean towards advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence. It is submitted that these exceptional circumstances may not be advanced in abstracto so as to limit one’s freedom of expression: the onus is on the State to establish that in a particular case fully granting the freedom of expression would impede or threaten to impede the freedom of religion or belief of others. In the present case the State did not establish anything of the kind, nor did the European Court make any assessments along those lines.

In Gay News Ltd. and Lemon v. United Kingdom,8 the Commission dealt with the publication in a magazine called Gay News