In the shadow of the Durban II anti-racism conference in Geneva this past April, the United Nations resolution on “Combating Defamation of Religions” has gotten a lot of attention. The resolution is sponsored by the Organization of the Islamic Conference (OIC) - a group comprised of 57 Members which include 56 independent states and the Palestinian Authority. Despite its recent media attention, the resolution itself is not new. It has been introduced in the UN every year since 1999 in various forms by Pakistan on behalf of the OIC. The resolution was originally introduced to the UN’s Commission on Human Rights under their agenda item on racism (which was later succeeded by the UN Human Rights Council in 2006), and since 2005, it has also consistently been passed by the UN General Assembly.

It may not be commonly known that the first draft resolution was entitled “Defamation of Islam”. Many delegates to the Commission on Human Rights felt that the resolution was not being evenhanded since it only addressed Islam, so the OIC amended it to refer to “Defamation of Religions”. But as it stands now, the resolution remains under inclusive. While referring to “all religions”, the only religion identified by name is Islam.

The original purpose that the OIC cited for introducing this resolution was that defaming Islam leads to an increase in intolerance towards and violence against Muslims, a notion that was further reinforced by them after the attacks of September 11, 2001. And despite the resolution’s amendment to cover all religions, it presents Muslims as constant victims, specifically asserting that they are being singled out for denigration. The most recent example of this effort is the constant juxtaposition in every resolution since 2001 of the alleged plight of Muslims with the attacks of September 11, and the resolution even goes so far as to state in adjacent clauses that "Islam is frequently and wrongly associated with human rights violations and terrorism."

On its face, adopting a resolution that protects religions against defamation may seem like a benign undertaking at the very least, and perhaps even a good thing, because it is rare that anyone would logically be against protecting religion. But, the resolution raises certain problems.

Prohibiting what they call “defamation of religions” stifles free expression by preventing discussion of religious values in the marketplace of ideas. UN Resolutions are non-binding and do not have the force of law so a resolution on defamation of religions may not be appear worrisome. However, there have been attempts to make the resolution enforceable international law by way of a UN Convention. This effort is essentially cover for the propagation of Islamic blasphemy laws.

There have already been efforts to prosecute citizens of Western nations for blasphemy in Islamic courts. Last year, Jordanian prosecutors brought charges of blasphemy against several Danish journalists, including the cartoonist who drew the images of Mohammed that have gotten so much press since 2005, and Dutch politician Geert Wilders whose film Fitna suggests that the Koran inspires Islamic extremism.

The actions of the defendants that led to those charges were not committed in Jordan, and Denmark and the Netherlands did not extradite their citizens to stand before the Jordanian court because the alleged “crimes” these individuals committed were not crimes in those countries. On the contrary - they were actions guaranteed by those countries laws which protect free expression.

If the resolution on “Combating Defamation of Religions” becomes international law, there would be no safeguards against the international prosecution of individuals who act within the rights afforded to them by the domestic laws of their home countries. Essentially free expression would come to a standstill when the subject matter pertains to religion, particularly Islam. This could result in prosecution without boundaries and could result in self-censorship by every global citizen.

Criticizing an idea and questioning its value is an expression of opinion, a right that is protected by the laws of free expression, both in the domestic laws of Western countries and in international law under the 1948 Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).

The Universal Declaration of Human Rights states in Article 19 that “[e]veryone has a right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” The ICCPR states in Article 18 (1) that “[e]veryone shall have the right to freedom of thought, conscience and religion[,]” and in Article 19 (1) that “[e]veryone shall have the right to hold opinions without interference.” Although the OIC may want you to believe otherwise, it is important to note that criticism of religion is not the same as hate speech. And the international community has made clear that it understands that distinction by delineating the protection of the freedom to criticize in these two important international documents.

There is also a further challenge to the incorporation of the resolution into international law. Under the Western understanding of the definition of defamation, “Defamation of Religions” would be legally impossible.

A religion, which is a set of beliefs, cannot be defamed. Defamation involves the publication of a false statement about a person, business, group or government. For the purposes of a defamation claim, the falsehood of a statement about a religion can never established, because neither can its truth. Moreover, not only is it not the role of a judge to determine whether a belief is true or false, it is not possible to render a decision on a matter that is inconclusive.

Even if it were determined that an 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. Furthermore, due to 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, a lawsuit based on defamation of religion is impracticable and a claim arising from that cause of action would be unable to be presented in any reputable court.

So the question remains - if there are serious legal challenges to the application of a defamation of religions convention, and Western countries that place a high premium on free expression see this resolution as contrary to their values, why should we worry if we can argue that it will never really apply to us? After all, just because a UN convention exists does not mean the United States, or any state for that matter, must sign onto it.

The answer is this. The term “Defamation of Religions” has entered the legal lexicon of the international community, without people stopping to really think about what it means, what it legally entails, and what effect it could have on them as individuals and on the societies they live in. Some may support it without fully analyzing its implications. Ultimately what will happen is that people will be afraid to speak their minds, critique ideas, or discuss certain issues for fear of being brought up on charges in the international system.

We must continue to bring to light the inadequacies of the resolution on “Combating Defamation of Religions” and point out the details that raise cause for concern. It is important to emphasize that as it currently reads, “Defamation of Religions” really remains “Defamation of Islam” - code for blasphemy laws and a cover for the intentions of the OIC to make criticism of Islam and the exercise of free expression a criminal act under international law that has the potential to silence the masses.

Elizabeth Samson is a Visiting Fellow at the Hudson Institute. This article is based on the remarks she presented at the conference of the Middle East Forum on Libel Lawfare: Silencing Criticism of Radical Islam on May 19, 2009.

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