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INTERSECTION OF FREEDOM OF RELIGION OR BELIEF WITH OTHER HUMAN RIGHTS

1. Freedom of expression including questions related to religious conflicts, religious intolerance and extremism

ICCPR

Art. 19:

"1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals."

Art. 20:

"1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."

Commission on Human Rights resolution 2005/40

5 (a): In which the Commission on Human Rights invites the Special Rapporteur to address the rise of religious extremism affecting religions in all parts of the world.

5 (c): In which the Commission on Human Rights invites the Special Rapporteur to address the issue of the use of religion or belief for ends inconsistent with the Charter of the United Nations and other relevant instruments of the United Nations.

6: The Commission on Human Rights, "Recognizes with deep concern the overall rise in instances of intolerance and violence directed against members of many religious communities in various parts of the world, including cases motivated by Islamophobia, anti-Semitism and Christianophobia;".

9: The Commission on Human Rights, "Recognizes that the exercise of tolerance and non-discrimination by all actors in society is necessary for the full realization of the aims of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and invites Governments, religious bodies and civil society to continue to undertake dialogue at all levels to promote greater tolerance, respect and understanding;".

10: The Commission on Human Rights, "Emphasizes the importance of a continued and strengthened dialogue among and within religions or beliefs, encompassed by the dialogue among civilizations, to promote greater tolerance, respect and mutual understanding; ".

11: The Commission on Human Rights, "Also emphasizes that equating any religion with terrorism should be avoided as this may have adverse consequences on the enjoyment of the right to freedom of religion or belief of all members of the religious communities concerned;".

Human Rights Committee general comment 22

Para. 7: "In accordance with article 20, no manifestation of religion or belief may amount to propaganda for war or advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. As stated by the Committee in its general comment 11 [19], States parties are under the obligation to enact laws to prohibit such acts."

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Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)

A/HRC/2/3, paras. 22-50:

"22. The use of religious beliefs for political purposes, along with the negative stereotyping of some religions and beliefs, has often posed a challenge to the growth of a tolerant global society. In addition, the phenomenon of globalization has brought with it a series of new challenges. In particular, there is now much more awareness of, and prompt access to, information across borders and cultures. As a result, people of all opinions, beliefs and faiths live in greater proximity, making the need for tolerance even more urgent.

23. In the context of her activities, the Special Rapporteur on freedom of religion or belief has been made aware of numerous situations in which religious communities or beliefs have been the target of critical analysis from a merely theological point of view to the most extreme forms of incitement to violence or hatred against members of a religious group. Between these two extremes, one can find all sorts of expressions, including stereotyping, ridicule, derogatory comments and insults.

24. The Special Rapporteur has noted that these forms of expression target either the content of religious beliefs themselves or members of religious or belief communities because of the beliefs they hold. She has further noted that these forms of expression are directed towards many religious and belief communities, whether they are old or new, big or small. In this regard, the Special Rapporteur has been able to note that, while criticism of major religions attracts a lot of attention, numerous cases of criticism of smaller religions can go relatively unnoticed.

25. Regarding the authors of these forms of expression, the Special Rapporteur notes that they are not necessarily secularists, but also members of religious communities. Religious groups and communities are therefore not only the target of critical forms of expression, but also in many cases the origin.

26. The protection of the rights of religious minorities is central to the mandate on freedom of religion or belief. It should not be compromised even if other members of the community engage in intolerant acts, including defamation of other religions. This approach is particularly relevant when a certain religious community may be in a minority in one part of the world and suffer accordingly, but it may constitute the major religious community in another part of the world and be accused of intolerant treatment towards its own religious minorities.

27. Moreover, individuals who belong to a majority religion are not always free from being pressured to adhere to a certain interpretation of that religion. From a human rights perspective, members of religions or communities of belief should therefore not be viewed as parts of homogenous entities. For that reason, inter alia, international human rights law protects primarily individuals in the exercise of their freedom of religion and not religions per se.

28. With regard to situations in which certain forms of expression confront religions or beliefs or members of religious or belief communities, it is essential to make a careful distinction between forms of expression that should constitute an offence under international law, forms of expression that are not criminally punishable but may justify a civil suit and forms of expression that do not give rise to criminal or civil sanctions but still raise a concern in terms of tolerance, civility, and respect for the religion or belief of others.

29. From a legal perspective, each set of facts is particular and can only be assessed and adjudicated, whether by a judge or another impartial body, according to its own circumstances. Certain situations will undoubtedly raise an issue in terms of international human rights law but other situations, while not raising a human rights law issue, will give rise to concerns if the circumstances and nature of expression could lead to a climate of intolerance.

30. The challenge is to decide what type of incident justifies action. In this respect, the Special Rapporteur seeks first and foremost guidance from international human rights law in general and the human rights standards that govern her mandate in particular. [For a more detailed description of the legal framework of the mandate, see paragraphs 15 to 20 of the report of the Special Rapporteur to the sixty-first session of the Commission on Human Rights (E/CN.4/2005/61) and the annex of her report to the sixty-second session of the Commission on Human Rights (E/CN.4/2006/5).]

1. The scope of the right to freedom of religion or belief

31. According to article 18 of the International Covenant on Civil and Political Rights, freedom of religion includes freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

32. In its general comment No. 22 on article 18 of the Covenant, the Human Rights Committee provides that: the right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) [...] is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others and that Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms "belief" and "religion" are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.

33. The same general comment contains a non-exhaustive catalogue of the different aspects that are covered by the right to freedom of religion or belief (see CCPR/C/21/Rev.1/Add.4, para. 4).

34. Like other fundamental human rights, the right to freedom of religion remains primarily an individual right. However, it is often rightly argued that due to the manifestation aspects of the right, the right to freedom of religion or belief is also a collective right.

35. Acts of religious intolerance or other acts that may violate the right to freedom of religion or belief can be committed by States but also by non-State entities or actors. States have an obligation to address acts that are perpetrated by non-State actors and which result in violations of the right to freedom of religion of others. This is part of the positive obligation under article 18 of the Covenant.

36. As such, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule. Moreover, the internal obligations that may exist within a religious community according to the faith of their members (for example, prohibitions on representing religious figures) do not of themselves constitute binding obligations of general application and are therefore not applicable to persons who are not members of the particular religious group or community, unless their content corresponds to rights that are protected by human rights law.

37. The right to freedom of expression can legitimately be restricted for advocacy that incites to acts of violence or discrimination against individuals on the basis of their religion. Defamation of religions may offend people and hurt their religious feelings but it does not necessarily or at least directly result in a violation of their rights, including their right to freedom of religion. Freedom of religion primarily confers a right to act in accordance with one's religion but does not bestow a right for believers to have their religion itself protected from all adverse comment.

38. The right to freedom of religion or belief protects primarily the individual and, to some extent, the collective rights of the community concerned but it does not protect religions or beliefs per se. While the exercise of freedom of expression could in concrete cases potentially affect the right to freedom of religion of certain identified individuals, it is conceptually inaccurate to present this phenomenon in abstracto as a conflict between the right to freedom of religion or belief and the right to freedom of opinion or expression.

39. Therefore, the question as to whether criticism, derogatory statements, insults or ridicule of one religion may actually negatively affect an individual's right to freedom of religion or belief can only be determined objectively and, in particular, by examining whether the different aspects of the manifestation of one's right to freedom of religion are accordingly negatively affected.

2. Religion and freedom of opinion and expression

40. Human rights are exercised in a context where rights coexist with each other. In this regard, most international human rights conventions provide that, in the exercise of their human rights, individuals have to respect the rights of others.

41. However, the coexistence of rights does not only imply that rights should be seen in a restrictive manner because of the existence of other rights; it also implies the fundamental notion of interdependency of human rights. The right to freedom of religion or belief needs other human rights to be fully exercised, including the right to freedom of association or the right to freedom of expression. The right to freedom of expression as it is protected by international standards, including article 19 of the Covenant, constitutes an essential aspect of the right to freedom of religion or belief.

42. In a number of States, in all regions of the world and with different religious backgrounds, some forms of defamation of religion constitute a criminal offence. While the different responses to such defamations depend on various factors, including historical and political factors, criminalizing defamation of religion can be counterproductive. The rigorous protection of religions as such may create an atmosphere of intolerance and can give rise to fear and may even provoke the chances of a backlash. There are numerous examples of persecution of religious minorities as a result of excessive legislation on religious offences or overzealous application of laws that are fairly neutral. As a limit to freedom of expression and information, it can also limit scholarship on religious issues and may asphyxiate honest debate or research.

43. Criminalizing speech that defames religions, whilst not amounting to forms of expression prohibited by international law, can limit discussion of practices within religions that may impinge upon other human rights. In such a context, criticism of practices - in some cases adopted in the form of a law - appearing to be in violation of human rights but that are sanctioned by religion or perceived to be sanctioned by religion would also come within the ambit of defamation of religion. The dilemma deepens, as independent research on the impact of such laws may not be possible, as a critical analysis of the law may by itself, in certain situations, be considered as defaming the religion itself.

3. Religious intolerance and incitement to religious hatred

44. According to article 20 of the Covenant, "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".

45. In its general comment 11, the Human Rights Committee holds that the measures contemplated by article 20, paragraph 2, of the Covenant constitute important safeguards against infringement of the rights of religious minorities and of other religious groups to exercise the rights guaranteed by articles 18 and 27, and against acts of violence or persecution directed towards those groups. Unfortunately this general comment does not give much more guidance about the interpretation that should be given to article 20 of the Covenant and, in particular, with regard to its threshold of application.

46. Compared to the other provisions of the Covenant, this provision is unusual because it does not provide for a human right but establishes limitations on other rights and requires States parties to enact legislative restrictions. Interestingly, commentators have pointed out that the limitations provided for in article 20 were not included in the provision dealing with freedom of expression, but were made the object of a separate provision. This implies that article 20 contains limitations for other rights, including freedom of religion. The exercise of freedom of religion could therefore potentially give rise to instances of advocacy that are prohibited by article 20.

47. The Special Rapporteur notes that article 20 of the Covenant was drafted against the historical background of the horrors committed by the Nazi regime during the Second World War. The threshold of the acts that are referred to in article 20 is relatively high because they have to constitute advocacy of national, racial or religious hatred. Accordingly, the Special Rapporteur is of the opinion that expressions should only be prohibited under article 20 if they constitute incitement to imminent acts of violence or discrimination against a specific individual or group.

48. A link is often made between article 20 and the relevant provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, and in particular its article 4 which provides, inter alia, that States parties:

"(a) [s]hall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, [...] against any race or group of persons of another colour or ethnic origin,".

49. However, the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief does not contain a prohibition of incitement to religious discrimination similar to article 4 above. The Special Rapporteur cautions against confusion between a racist statement and an act of defamation of religion. The elements that constitute a racist statement are not the same as those that constitute a statement defaming a religion. To this extent, the legal measures, and in particular the criminal measures, adopted by national legal systems to fight racism may not necessarily be applicable to defamation of religion.

50. Domestic and regional judicial bodies - where they exist - have often laboured to strike the delicate balance between competing rights, which is particularly demanding when beliefs and freedom of religion are involved. In situations where there are two competing rights, regional bodies have often extended a margin of appreciation to national authorities and in cases of religious sensitivities, they have generally left a slightly wider margin of appreciation, although any decision to limit a particular human right must comply with the criteria of proportionality. At the global level, there is not sufficient common ground to provide for a margin of appreciation. At the global level, any attempt to lower the threshold of article 20 of the Covenant would not only shrink the frontiers of free expression, but also limit freedom of religion or belief itself. Such an attempt could be counterproductive and may promote an atmosphere of religious intolerance."

A/65/207, paras. 41-44:

"41.         In resolution 64/164, the General Assembly urged States to take all necessary and appropriate action, in conformity with international human rights standards, to combat hatred, discrimination, intolerance and acts of violence, intimidation and coercion motivated by intolerance based on religion or belief, as well as incitement to hostility and violence, with particular regard to members of religious minorities in all parts of the world. The Special Rapporteur has addressed related issues and presented her conclusions and recommendations in various reports. In a mission report, for example, she voiced concerns at the extended time frame of investigations in cases involving communal riots, violence and massacres. [See the Special Rapporteur’s report on her mission to India (A/HRC/10/8/Add.3, paras. 30-41).] She would like to reiterate that communal violence is not merely a “law and order” problem but has serious socio-economic ramifications. It has been noted that sectarian riots are most likely to occur when the following elements are present: (a) severe long-standing antagonism on religious lines in particular villages and urban localities; (b) an emotional response of members of religious communities to a precipitating event; (c) a feeling in the minds of rioters and the larger religious group to which they belong that sectarian violence is justifiable; and (d) the assessment by the rioters that the reaction from the police to sectarian violence will be either absent or partisan or ineffective.

42.          Pursuant to Human Rights Council decision 1/107, entitled “Incitement to racial and religious hatred and the promotion of tolerance”, the Special Rapporteur submitted a report to the Council together with the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (A/HRC/2/3), in which the Special Rapporteurs recommended that the Council call upon all Governments to express and demonstrate a firm political will and commitment to combating the rise of racial and religious intolerance. The right to freedom of religion or belief as such does not include the right for one’s religion or belief to be free from criticism or all adverse comment. Yet, the right to freedom of expression can legitimately be restricted for advocacy that incites to acts of violence or discrimination against individuals on the basis of their religion. The Special Rapporteurs emphasized that freedom of religion or belief and freedom of expression are interdependent and interrelated.

43.          In this regard, the Special Rapporteur would like to distinguish between the expression of opinions, even when they are deemed offensive by some believers, and advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence. To protect the integrity of individuals, advocacy of religious hatred must be prohibited by law if it reaches the threshold of article 20, paragraph 2, of the International Covenant on Civil and Political Rights. However, each case has to be examined on its own merits so that freedom of expression and freedom of religion or belief are not undermined. In this regard, the judiciary plays a vital role in striking a delicate balance on a case-by-case basis. As indicated in one of the Special Rapporteur’s recent country reports, [Report on the mission to the former Yugoslav Republic of Macedonia (A/HRC/13/40/Add.2, paras. 46-48 and 60).] there is a risk that domestic laws prohibiting hate speech may be interpreted loosely and applied selectively by the authorities, which underlines the importance of having unambiguous language and of devising effective safeguards against abuses of the law. She would like to reiterate that legislation on religious issues should not be vague but rather must be all-inclusive, carefully crafted and implemented in a non-biased manner. [See the report on the 2008 expert seminar on the links between articles 19 and 20 of the International Covenant on Civil and Political Rights: “Freedom of expression and advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence” (A/HRC/10/31/Add.3, para. 24).]

44.          The Special Rapporteur would like to refer to positive developments in this regard. Subsequent to her recommendations in a country visit report, the Parliament introduced new legislation which ultimately abolished the discriminatory common-law offences of blasphemy and blasphemous libel in 2008. [See the Special Rapporteur’s report on her visit to the United Kingdom of Great Britain and Northern Ireland (A/HRC/7/10/Add.3, paras. 73-75), the Government’s replies to the list of issues in connection with the consideration of the sixth periodic report to the Human Rights Committee (CCPR/C/GBR/Q/6/Add.1, para. 165) and the Committee’s concluding observations (CCPR/C/GBR/CO/6, para. 4).] In addition, recent voting patterns in the Human Rights Council suggest that support for the concept of “defamation of religions” is on the decline at the international level. The Special Rapporteur would like to reiterate that criminalizing so-called defamation of religions as such can be counterproductive and may have adverse consequences for members of religious minorities, dissenting believers, atheists, artists and academics. [See A/62/280, paras. 70-71 and 76-77.] Instead of trying to shield religions per se against criticism or ridicule, States should rather focus their attention on the protection of believers and non-believers against discrimination and violence. In some countries, however, there still appears to be resistance to abandoning the criminalization of blasphemy or to repealing discriminatory provisions that purport to combat “defamation of religions”. [On 19 April 2010, for example, the Constitutional Court of Indonesia upheld the country’s anti-blasphemy law (No. 1/PNPS/1965), which imposes criminal penalties of up to five years’ imprisonment on individuals who deviate from the basic teachings of the official religions. See also the Special Rapporteur’s urgent appeals of 21 April 2008 and 12 June 2008, as well as the response by the Government of Indonesia dated 27 June 2008 (A/HRC/10/8/Add.1, paras. 55-68).]"

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