One of the important early contributions of James Madison to American life was his impact on the framing of the Constitution of the Commonwealth of Virginia in 1776. One section stated that "all men are equally entitled to the free exercise of religion according to the dictates of conscience." Another declared that "any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right." The Bill of Rights of the U.S. Constitution went even further with the provision that Congress should make no law "prohibiting the free exercise" of religion or abridge the freedom of speech or of the press.
As a result of Islamic activity in recent years the question has arisen in Western countries whether tension or incompatibility exists between the two principles, freedom of speech and freedom of religion, and whether restrictions should be imposed on speech critical of religions or religious beliefs. Should those beliefs and belief systems be protected from adverse comment? Equally should not those who may be offended by such comment tolerate the legitimate exercise of free expression in democratic societies?
In the contemporary world two general problems have arisen on this issue: Islamic attempts to ban criticism of their religion and its Prophet by sponsoring resolutions in international forums condemning "defamation of religions," and the increase in laws on hate speech and blasphemy.
In April 1999 the United Nations Commission on Human Rights (now the UN Human Rights Council, UNHRC) for the first time adopted a resolution "Defamation of Religions" introduced by Pakistan on behalf of the Organization of the Islamic Conference that purported to be concerned with "negative stereotyping of religions." It was really primarily interested in countering what it called the view that "Islam is frequently and wrongly associated with human rights violations and with terrorism." Since then this strategy has been incessantly repeated in international organizations, in the UN General Assembly, from 2005, and in the UN Human Rights Council, from 1999 to the present, which have passed resolutions aimed at "combatting the defamation of Islam." One example of many was the resolution of the UN General Assembly 62/154 of December 18, 2007 which noted with concern that "defamation of religions could lead to social disharmony and violations of human rights of their adherents."
Two issues are relevant. The fundamental problem is that in this and all similar resolutions the only specific reference to religions was Islam, and "the negative projection of Islam in the media and the introduction and enforcement of laws that specifically discriminate against and target Muslims." The call is always to combat effectively defamation of all religions and incitements to religious hatred, against Islam and Muslims in particular." The major player in this strategy is the Organization of Islamic Cooperation (OIC), formerly the Organization of Islamic Conference, a group of 57 Muslim countries, with a headquarters in Saudi Arabia. It has called for legislation by states to prohibit the defamation of religions, thus seeking to criminalize incitement to hatred and violence on religious grounds.
The other issue is that international human rights laws exist to protect individuals in the exercise of their freedom of religion or belief, not religions as such. The OIC's strategy is contrary to the principles of the Universal Declaration of Human Rights, adopted by the United Nations on December 10, 1948, that stated in Article 19; "Everyone has the right to freedom of opinion and expression." The OIC"s objective is to limit freedom of expression on religion.
Only in July 2011 was there a change with a statement by the Human Rights Committee, (HRC), a body of 18 independent experts, "of high moral character and recognized competence in the field of human rights," set up to examine compliance with the 1966 International Covenant on Civil and Political Rights, which entered into force in 1976, that provided for freedom of expression. It found that blasphemy laws, such as those in countries like Egypt and Pakistan, are in essence restrictions on free speech. The penal code of Pakistan proscribes imprisonment and even death for insults to religion and to the prophet Muhammad. Blasphemy laws tend to be broad in scope and political weapons to stifle dissent. The statement of HRC, General Comment No. 34, a comment on Article 19 of the 1966 International Covenant, said that blasphemy laws and prohibitions of displays of lack of respect for a religion or other belief systems, were incompatible with universal human rights standards. Though recognizing the difficulty in implementing the goal, the Committee reaffirmed the central importance of freedom of expression that is crucial for transparency and accountability that in turn are essential for human rights.
This conclusion is eminently justified because the activity of the OIC is clearly a violation of the universality of human rights, though the OIC claims that the 1990 Cairo Declaration is not an alternative competing worldview on human rights. That Cairo Document, approved on August 5, 1990 by the then 45 members of the OIC, declared, Art 22 (a), that "Everyone shall have the right to express his opinion freely in such a manner as would not be contrary to the principles of the Sharia," and in Art 22 (c) that "Information…may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets," and in Art 24 that "All the rights and freedoms stipulated in this Declaration are subject to the Islamic Sharia."
Hate speech laws in a number of European countries have, since the defeat of Nazi Germany, tried to prevent or punish incitement to religious and racial hatred. No universal definitional agreement of "hate speech" exists. Though the primary original intention, after Nazism, was to reduce expressions of antisemitism, laws for some time have been used to punish speech regarded as insulting to a race, nationality, ethnicity, or religion, and expressions of hatred founded on intolerance including religious intolerance. In particular, Islamic groups, to prevent criticism, have tried to use them or to misinterpret the European and International Covenants on Human Rights and the Elimination of Religious Discrimination on which the laws are based.
It seems to be clear that case law decided by the European Court of Human Rights has established that expressions constituting hate speech which are insulting to particular individuals or groups can be restricted by governments in their national law. Yet some ambiguity remains. The Venice Commission of the Council of Europe (The European Commission for Democracy in Law), a group of independent experts and distinguished academics, was established in 1990 as the Council of Europe's advisory body on constitutional issues. The Commission on October 17-18, 2008 concluded that the offence of blasphemy should be abolished, and that in democratic countries it was neither necessary nor desirable to create an offence of religious insult (insult to religious feelings) without the element of incitement to hatred as an essential component.
In December 12-14, 2011 the OIC met in Washington, D.C. with the Obama Administration to discuss what has become known as the Istanbul Process, the issue of implementing the UN Human Rights Council Resolution 16/18 adopted without a vote on March 24, 2011. This Resolution reaffirmed the obligation of states to prohibit discrimination on the basis of religion or belief. It condemned any advocacy of religious hatred that constitutes incitement to discrimination, hostility, or violence, and expressed deep concern about "derogatory stereotyping, negative profiling and stigmatization of persons based on their religion or belief." It was noticeable that this Resolution did not use the term "defamation" of religions but used a softer term, "persons based on their religion or belief." The Resolution urged states "to take effective measures" to prevent discrimination against such persons. This Resolution was approved, a week after the D.C. meeting, unanimously by the UN General Assembly on December 19, 2011.
The first such meeting, launched by the Secretary-General of the OIC , to implement 16/18 was held in Istanbul in July 2011, and the third will be hosted, at the tentative date of July 2012, by the European Union. The irony in the D.C. meeting and in the Resolution is that the OIC has been active in trying to limit freedom of expression about its religion rather than protecting freedom of religion as a whole. This has been evident since the Cairo Declaration by the OIC in 1990 that declared that free speech must be consistent with sharia law. The OIC intent is to limit rather than to protect speech.
All too many attacks on free speech have been made in recent years by Islamic groups in the Western world. In April 2011 an episode of "South Park" was censured because of uncomplimentary remarks about the Prophet Muhammad. Earlier incidents are well known. Salman Rushdie was victimized by a fatwa by the Ayatollah Khomeini ordering him to be killed for writing The Satanic Verses, which the Iranian leader held to be blasphemous. Theo van Gogh, the Dutch filmmaker of Submission, a film that connected the mistreatment of Muslim women to the Koran, was murdered by a Dutch-Moroccan Muslim in 2004. The editor of the Danish newspaper Jyllands-Posten, was threatened for publishing 12 cartoons of the prophet on September 30, 2005. The consequence was riots by Muslims who killed over 100 people. The Dutch politician Geert Wilders was indicted for his comments on Islam and Muslims and threatened for his film Fitna with its critical passages about the Koran. It took several years of proceedings before he was acquitted. The unorthodox French author Michel Houellebecq was indicted, though acquitted, for calling Islam "stupid" and "dangerous." The film star Brigitte Bardot was convicted on a number of occasions for critical remarks which were held to be racial hatred about Muslims The office of Charlie Hebdo, the French satirical weekly, was firebombed in 2011 after it had published a story that the prophet was to be a guest editor for a special edition of the journal, which would be renamed Sharia Hebdo in order to celebrate Islamic victory in Tunisia. Arrest warrants were issued first in Switzerland in 2002 and then in Italy in 2005 for the writer Oriana Fallaci for alleged remarks offensive to Islam in her book, The Force of Reason. The remarks of Pope Benedict XVI, critical of the practice of forced religious conversion, at a speech at Regensburg University on September 20, 2006 were held to be "unfortunate and unwarranted" -- just to name a few incidents.
The democratic world must take care that any action based on the UNHRC's Resolution 16/18, "Combatting intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief" does not diminish the fundamental right to free speech.
Michael Curtis is Distinguished Professor Emeritus of Political Science at Rutgers University, and author of the forthcoming book, Should Israel Exist? A sovereign nation under assault by the international community.