The Human Rights Council concluded its nineteenth session on March 23, 2012 and adopted, without a vote, yet another resolution aimed at restricting freedom of speech throughout the world. While its title[1], as usual, suggests it is about combating intolerance based on religion, its plain language shows that, once again, speech is the real target.
One of its sponsors, the Organization of Islamic Cooperation (formerly the Organization of the Islamic Conference or “OIC” ), has, for over a decade, introduced speech-restrictive resolutions at the United Nations. In the past, these resolutions contained explicit language about “defamation of religions.” Last year, however, when the OIC introduced Resolution 16/18 without the term “defamation of religions,” the West’s resistance to the OIC’s efforts faltered (discussed here). The “defamation of religions” concept had been easy for Western countries to rally against, in part, because it seemed to attach rights to a concept (here, religion) rather than to individuals. But, dropping that term was little more than a cosmetic change leaving speech-targeting language behind and the OIC’s speech-restrictive agenda intact.
Resolution 19/25, like 16/18, specifically “condemns” certain types of speech and “urges States to take effective measures as set forth in the present resolution, consistent with their obligations under international human rights law, to address and combat such incidents.” (emphasis added) In short, it is an explicit call to action for states to curtail certain types of speech.
The “advocacy” (read: speech) that the resolution “condemns” and calls on states to limit is “any advocacy of religious hatred against individuals that constitutes incitement to discrimination, hostility or violence” using “print, audio-visual or electronic media or any other means.” This language almost directly parallels International Covenant of Civil and Political Rights Article 20(2), which reads: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
At the time Article 20 was being debated, there was little doubt that it was about limiting speech; and indeed, concerns were raised about the potential for abuse of the provision to limit an essential right. Further, when the United States finally ratified the ICCPR in 1992, it did so with an explicit reservation to Article 20, reading: “That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.”
The language of ICCPR Article 20 and Resolutions 16/18 and 19/25 bears a striking resemblance to the “hate speech” provisions that have proliferated throughout Europe and that are already being used to silence speech (as the trials of Geert Wilders, Lars Hedegaard, and others demonstrate).
Further, conceptually, “defamation of religions” and “hate speech” were already linked in prior resolutions. It is puzzling, therefore, that the West was so easily duped into believing that dropping the “defamation of religions” language was any kind of substantive victory. Although the most recent resolutions stop short of Article 20’s language, leaving out “shall be prohibited by law,” it hardly matters. The OIC’s agenda can simply be pushed instead through “hate speech” laws that already exist. (By its own statements, the OIC has not changed its goals, nor has it abandoned the concept.) The shift in wording has simply lost us allies in resisiting it.
That a resolution without an explicit reference to “defamation of religions” but that retained “hate speech” language would be more appealing to European allies is not surprising. Most European countries have already adopted some form of “hate speech” laws -- but to terrible effect -- on freedom of speech. With regard to this issue, the United States had stood alone—"hate speech” is currently not proscribed here, although we appear headed in that direction: since the United States supported the resolution, how could we expect our Western allies to resist?
Our Secretary of State applauded the OIC and described efforts leading to Resolution 16/18 as beginning “to overcome the false divide that pits religious sensitivities against freedom of expression.” Far from demanding a “reservations clause” of any kind, the United States, instead, sponsored a three-day, closed-door meeting in Washington, DC last December on implementing 16/18 —a meeting in a series called the “Istanbul Process.” Taking its lead from the US, the European Union then offered to host the next session, an initiative the OIC hailed as a “a qualitative shift in action against the phenomenon of Islamophobia.”
In short, a mere cosmetic change in a resolution has resulted in a radical shift in the West’s—and specifically United States’ and therefore Europe’s —policy toward the OIC’s efforts to restrict free speech..
If we do not wake up soon, recognize the implications of that policy shift, and reverse course, this “mere” cosmetic change may result in a radical shift in the protections for freedom of speech in the United States.
Ann Snyder serves as a Senior Fellow of The Legal Project, an activity of the Middle East Forum.