The first Durban anti-racism conference in September 2001 was a circus of anti-Western and anti-Israel vitriol. Now it seems that the second conference, known as Durban II and set to take place in April 2009, is making free expression its new enemy. The 57-state Organization of the Islamic Conference has successfully brought the United Nations resolution on combating defamation of religions to a vote every year since 1999 with little variation. At Durban II, this resolution, which is essentially a cover for Islamic blasphemy laws, will be taking center stage. Fortunately, the resolution has two major inherent weaknesses.
First, it is not inclusive and so its universality is questionable, as is the motive of its author. Though the title of the resolution appears benign, it singles out Islam as a victim of maltreatment while no other religion is mentioned. In addition, a consistent juxtaposition of the alleged plight of Muslims with the attacks of September 11, 2001 strongly suggests a denial of culpability, with the resolution even going so far as to state that "Islam is frequently and wrongly associated with human rights violations and terrorism."
It cannot be denied that there are, indeed, those who have been treated unfairly simply because they are Muslim, just as many other religious adherents are treated wrongly because of their faith. However, it is disingenuous for the UN-s High Commissioner for Human Rights to espouse a specific religion like Islam under the guise of protecting it, while ignoring the human rights atrocities being committed in the name of Islam even at the moment of this writing, such as the decades-long and ongoing persecution, enslavement and murder of Christians by Muslims in Sudan.
Furthermore, by focusing on maltreatment of Muslims in what the resolution calls "non-Muslim countries," it ignores the pervasive sectarian violence in places where Muslim-on-Muslim assaults account for more death in the name of Islam than all the instances in Western countries combined.
SECOND, THE use of the term "defamation of religions" misemploys a legal concept to lend legitimacy to this enterprise, but it will be a blow to the OIC to learn that defamation of religion is a legal impossibility.
Defamation is defined as the publication of a false statement about a person, business, group or government, all of which are tangible entities. A religion cannot be defamed, as it is merely a set of beliefs. It cannot take offense and it cannot bring a tort or criminal claim against its detractors. But more significantly, even if a religion could take itself to court and hire a lawyer to make its case, the defendant could easily be granted a motion to dismiss for failure to state a claim upon which relief can be granted.
For the purposes of a defamation claim, the falsehood of a statement about a religion can never established, because neither can its truth. By its very nature, a religious belief is subjectively determined by the religion's followers. Moreover, not only is it not the role of a judge to determine whether a belief is true or false, the notion that a court would even hear a claim like that is a paradox, because there is no plausible way to render a decision on a matter the very nature of which is inconclusive.
THE RESOLUTION on combating defamation of religions gives obvious reason to worry. At present, countries that have statutes prohibiting blasphemy can use the resolution's passage to legitimate laws antithetical to the democratic values that promote free expression. UN resolutions are nonbinding expressions of sentiment, but there has been talk of making this one authoritative international law by way of a UN convention.
If it becomes law, it will be a mockery of international jurisprudence. Any claim brought under it could not possibly stand up in court because of the inability to provide empirical evidence of the religion's veracity or fallacy, not to mention the challenges relating to questions of proper venue and issues of standing. Even if it were determined that any adherent of a particular religion could sue in the name of that religion, questions of proof would arise as to the association with that group and the courts would be flooded with frivolous claims.
IN SHORT, the resolution is an affront to free expression and is intrinsically flawed. In a democracy, the purpose of a law protecting speech is not to defend a singular belief, but rather to protect individuals and groups so they can share and develop their views. This resolution is not a serious international attempt to fight intolerance and foster global unity. It is a political machination orchestrated by the OIC to stifle free expression and criticism of Islam.
The writer, an attorney specializing in international law and constitutional law, is a visiting fellow at the Hudson Institute and a former Legacy Heritage Fellow.