Jeroen Temperman, Erasmus University RotterdamJeroen Temperman, Erasmus University Rotterdam

The Prohibition of Incitement The Prohibition of Incitement in International Law: in International Law:

The Case of ReligionThe Case of Religion

ExampleExample

“And here we keep our most holy relic”

ExampleExample

“I’m an Atheist”.”I’m a Christian”. “I’m a Scientologist”.

Example: Religiously Example: Religiously Motivated HatredMotivated Hatred

Example: Religious LeadersExample: Religious Leaders

Abu Hamza al-Masri

Example: defamation of Example: defamation of Islam + reactions Muslim Islam + reactions Muslim

worldworld

Example 4: PoliticiansExample 4: Politicians

Example 5: ‘Academics’Example 5: ‘Academics’

Roger Garaudy

Robert Faurisson

Example 6: JournalistsExample 6: Journalists

Paul Giniewski (France)

Sürek (Turkey)

Jersild (Denmark)

ECtHR & religious ECtHR & religious defamation/hatred casesdefamation/hatred cases

3 objections:(A) the Court’s gradual development of a

“right not to be insulted in one’s religious feelings”

(B) the Court’s failure to realize that there is no conflict between freedom of religion or belief and freedom of expression in abstracto

(C) the Court’s sanctioning of inherently discriminatory laws.

(A) A ‘right not to be (A) A ‘right not to be insulted in one’s religious insulted in one’s religious

feelings’?feelings’?E.g.:

“the right of citizens not to be offended in their religious feelings by publications” (Gay News)

“the respect for the religious feelings of believers as guaranteed in Article 9 [of the European Convention on Human Rights]” (Otto Preminger)

“the right of citizens not to be insulted in their religious feelings” (Otto Preminger)

“the right of citizens not to be insulted in their religious feelings” (Wingrove)

“[need to] to ensure respect for the religious doctrines and beliefs of others” (Murphy)

(B) Abstract conflict between (B) Abstract conflict between FoE & FoRB?FoE & FoRB?

E.g.: İ.A. v. Turkey: pressing social need to interfere with free speech?

E.g. the use of demographical figures by the Court: Otto-Preminger v. Austria:

“The Court cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyroleans. In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.”

Cont’d: Holocaust denial Cont’d: Holocaust denial casescases

E.g. Garaudy v. France: “There can be no doubt that denying the reality of clearly established historical facts, such as the Holocaust, as the applicant does in his book, does not constitute historical research akin to a quest for the truth. The aim and the result of that approach are completely different, the real purpose being to rehabilitate the National-Socialist regime and, as a consequence, accuse the victims themselves of falsifying history. Denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them ... Such acts are incompatible with democracy and human rights because they infringe the rights of others.”

(C) (C) ECtHR sanctions ECtHR sanctions discriminatory lawsdiscriminatory laws

E.g. Wingrove & Gay News cases:

“It is true that the English law of blasphemy only extends to the Christian faith. … The uncontested fact that the law of blasphemy does not treat on an equal footing the different religions practised in the United Kingdom does not detract from the legitimacy of the aim pursued in the present context”

Re-Conceptualizing the Abuse of Right Doctrine?

No equivalent of Art. 20(2) ICCPR in the European Convention

Article 17 ECHR: Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Caveats/drawbacks

Article 20(2) International Article 20(2) International Covenant on Civil and Political Covenant on Civil and Political

RightsRights

“Any advocacy of…religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by

law.”

Triangle of Incitement

Inciter incitement (call for action) content speech

(mens rea?) (e.g. dehumanization, stereotyping)

Audience

context: likelihood of adverse action: discrimination, hostility, violence

Target Group

Elements of incitement

Advocatorpublically made message intense degree of enmityTarget GroupIncitementdiscrimination, hostility or violenceAudience

Human Rights Committee & Human Rights Committee & Article 20(2) ICCPRArticle 20(2) ICCPR

Decisive factors:

i. Text: the actual speech (not subjective reaction by targeted group): element of incitement or not?

ii. Context: the reaction or potential reaction by third persons vis-à-vis the group targeted by the speech/publication: fundamental rights of others threatened or not?

E.g. Human Rights Committee, Malcolm Ross v. Canada (2000)

Balancing content & contextBalancing content & context

Content: text of the actual speech (not subjective reaction by targeted group): element of incitement or not?

Context: likelihood of adverse reaction by Audience vis-à-vis the Target Group, i.e.: are fundamental rights of others truly threatened or not?

Content

are ‘fighting words’ used; that is, are there any express calls for adverse action discernible (‘discrimination’, ‘hostility’ or ‘violence’)?;

how intense are the statements made; that is, are emotions of opprobrium, enmity and detestation discernible?; notably:

to what extent is the Target Group dehumanized or depicted as inferior beings in the speech?;

how many times is the hateful message repeated (from a one-off expression of hatred to a systematic hate campaign)?

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Context

what is the position of the Advocator: politician, religious leader, journalist, academic, artist, member of the public?;

how ‘public’ is the speech; that is, what is the level of outreach of the speech and what is the size of the Audience; notably:

what is the medium used (internet, book, documentary, pamphlet, interview, newspaper article, newspaper letter/column, magazine, statement on TV, etc.)?;

what is the setting of the speech (e.g. a ticketed conference/debate/cinema film, a political rally in the street, a TV debate, or a church service, etc.)?;

what is the profile of the Target Group and its position in society (e.g. religious minority or majority?; is there a history of recorded hate crimes against the Target Group?, etc.)?

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Mens rea

Triple intent requirement:

Intention to disseminateIntention to target a specific groupIntention to incite discrimination or violence

State practice includes ‘recklessness’ and ‘reasonable person’ requirements.

2011 milestone: All unqualified 2011 milestone: All unqualified blasphemy laws must be blasphemy laws must be

repealedrepealed

Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant ... Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith. (General Comment No. 34, para. 48)

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‘‘Memory laws’ to be Memory laws’ to be repealedrepealed

Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20. (General Comment No. 34, para. 48)

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Religious Hate Speech Religious Hate Speech LegislationLegislation

(Religious) Hate Speech Bills, e.g. UK, Switzerland Generic Penal Code provisions on incitement, e.g. Brazil,

Canada, Croatia, Denmark, Finland, Germany, India, Netherlands, New Zealand, Serbia, Sweden

‘Denial laws’; e.g. Austria, Belgium, France De facto application of defamation laws to counter

religious hate speech (e.g. Iceland, Norway): important role judge

Purely a matter of jurisprudence: liberal democracies with no hate speech legislation (e.g. USA): ‘clear and present danger’ & ‘imminent action’ doctrine

Regulations tackling specific forms of religious hate speech

A Right to be Free From A Right to be Free From Religious Hatred?Religious Hatred?

Article 20 ICCPR odd-one-outExtra Limits on other Rights, no

individual right?State obligations to prohibit

something, no individual right? Wilders case to shine new light on

these questions

Wilders case

Tried in relation to group defamation and hate speech

allegations from 2009-2011Initial prosecutorial decision not to

prosecute overruled by High CourtProsecution requested acquittal

(twice)Full acquittal granted by Amsterdam

district Court on 23 June 2011

Berated statements (selection)- “We must stop the tsunami of the

Islamisation. This hits us in the heart, in our identity, in our culture. If we do not defend ourselves all other points from my programme will appear to be useless.”

Cont’d

- “Everybody adapts to our dominant culture. Who does not do so will no longer be here in twenty years’ time. They will be deported.”

- “Close the borders, no more Islamics in the Netherlands, many Muslims deported from the Netherlands, denaturalisation of Islamic criminals.”

Cont’d

“A moderate Islam does not exist. It does not exist because there is no distinction between Good Islam and Bad Islam. There is Islam and that is it … And the Quran is the Mein Kampf of a religion that intends to eliminate others and that refers to those others – non-Muslims – as unfaithful dogs, inferior beings. Read the Quran, this Mein Kampf, again. In whatever version, you will see that all the evil that the sons of Allah commit to us and themselves originates from this book”

Cont’d

“The government wants you to respect the Islam, yet the Islam has no respect at all for you. The Islam wants to control, subdue and is out for the destruction of our Western civilisation. In 1945 Nazism was beaten in Europe. In 1989 communism was beaten in Europe. Now the Islamic ideology must be beaten. Stop the Islamisation. Defend our freedom” [from Fitna movie]

Indictment

Relevant counts: “Inciting hatred against Muslims because of their religion” “Inciting discrimination against Muslims because of their religion”

Law

Article 137d of the Dutch Criminal Code:1. He who publicly, verbally or in writing or in an image, incites hatred against or discrimination of people or violent behaviour against person or property of people because of their race, their religion or belief, their gender or hetero- or homosexual nature or their physical, mental, or intellectual disabilities, will be punished with a prison sentence of at the most one year or a fine of third category.

Wilders case continued internationally…M.R., A.B.S. and N.A v. The Netherlands

- M.R., A.B.S. and N.A v. the Netherlands, lodged on 15 November 2011

- Complaint: trial did not meet standards of Article 20(2) ICCPR Assessment too textual, not contextual

enough Proof of link between statements and

poisoned atmosphere

A right to be protected from inciteful speech under ECHR? Aksu: Article 8 complaint Karaahmed: Article 9 complaint