The 31st session of the Human Rights Council (HRC) is a significant marker: not only will the HRC celebrate its 10th birthday, but the session will mark five years since the adoption of resolution 16/18 on “combating intolerance, negative stereotyping and stigmatisation of, and discrimination, incitement to violence, and violence against persons based on religion or belief.”
In the current geopolitical context, the consensus that underpins resolution 16/18 is increasingly precarious, despite being more important than ever. In March, the HRC will consider a follow-up resolution: it will be a test of its new membership, and an opportunity for all States to consolidate consensus by recommitting to implementation.
Not to be overlooked during the upcoming session is the final report of outgoing UN Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt. The report advances normative clarity on the legal and practical relationship between the freedoms of religion or belief and expression, making a strong case for drawing upon the OHCHR’s Rabat Plan of Action (Rabat Plan) in implementing resolution 16/18. The report indicates that the Rabat Plan is key as a normative framework, and has a further practical significance, in part as it requires the mobilisation of many more stakeholders to address the root causes of discrimination, including civil society, national human rights institutions, the media and others. The approach advocated could do much to reinvigorate the Istanbul Process (a series of inter-governmental meetings to promote and guide implementation) and towards effectively countering religion or belief based intolerance.
Professor Heiner Bielefeldt, UN Special Rapporteur on freedom of religion or belief
In this anniversary year, the implementation of resolution 16/18 should be treated as a barometer of the HRC’s effectiveness. From the perspective of those working, in an increasingly restrictive environment, to protect the freedoms of religion or belief and expression on the ground, the vision of resolution 16/18 is far from realised. Bielefeldt’s final report provides important insights on what the HRC can do to live up to its mandate as a platform for real action.
Background
Resolution 16/18 is often touted as one of the greatest achievements of the HRC’s first decade, hailed as a “triumph of multilateralism” by the then Organisation of Islamic Cooperation (OIC) Secretary General. The resolution bridged polarised views on how to effectively address intolerance based on religion or belief. Significantly, its consensus-based approach replaced calls at the Council to combat “defamation of religions”, a concept incompatible with international human rights law. Instead, it commits States to tackle religious intolerance through promoting the (closely interrelated) rights to freedom of expression, freedom of religion or belief, and non-discrimination.
The resolution’s eight-point plan places unique emphasis on implementation, primarily through positive measures aimed at increasing inter-group communication, reserving limitations on expression to a narrow and exceptional category of “incitement to imminent violence based on religion or belief” (paragraph 5(f)). Importantly, through the Istanbul Process, States have a forum to engage in dialogue and experience sharing on implementation, supplemented by a regular reporting mechanism through OHCHR.[i]
Bielefeldt’s report emphasises that implementation is imperative: if intolerance on the basis of religion or belief is to be effectively challenged, it is through domestic action. Critically, he strongly advocates the Rabat Plan as a tool to guide resolution 16/18’s implementation. The Rabat Plan, referenced favourably in follow-up resolutions to 16/18, is an authoritative document that unpacks States’ obligations (under Article 20(2) of the ICCPR) to prohibit any “advocacy of national, racial or religious hatred that constitutes incitement to violence, hostility or discrimination” (‘incitement’).
Achieving normative clarity
Bielefeldt’s report provides, at a critical moment,[ii] normative clarity on the relationship between the freedoms of religion or belief and expression, which he terms “closely interrelated rights.” Rather than these rights being in opposition, he reasserts that they are mutually reinforcing.
At the intersection of these rights, the scope of States’ obligations to prohibit “incitement” vis-à-vis freedom of expression is a recurring source of confusion and conflict between divergent viewpoints at the HRC. Divergence often centres on the utility of proscribing expression to tackle intolerance, and in particular whether Article 20(2) ICCPR (and the related but narrower political commitment of States under paragraph 5(f) of resolution 16/18) requires or justifies prohibitions of “blasphemy” or “defamation of religions”.
Bielefeldt promotes the Rabat Plan as a “helpful tool” for overcoming differences in understanding. The crux of the Rabat Plan is that, as a default, more expression, coupled with policies and laws to tackle the root causes of discrimination, is the best antidote to intolerant expression. In this regard, he cites “The Camden Principles on Freedom of Expression and Equality”, which themselves inform the Rabat Plan. Limitations on expression serve a very limited role, as a last resort, and improperly applied is counterproductive.
A six-part “threshold test” is proposed in the Rabat Plan, to assist prosecutors and judiciary in drawing the line between “hate speech” that (while objectionable or even grossly offensive) should be permitted, and the exceptional circumstances in which it is necessary and proportionate to restrict such speech.[iii] Throughout his mandate, Bielefeldt has consistently impressed upon States that resisting the censorship of “hate speech” does not imply that one must stay silent or inaction when confronted with it. Instead he advocates the primacy of positive measures to bolster “counter-speech”, with civil society space being crucial.
The Rabat Plan insists that to face prohibition any advocacy of hatred under Article 20(2) ICCPR must risk inciting an “imminent” harm, closely resembling paragraph 5(f) of resolution 16/18 (on criminalising incitement to imminent violence on the basis of religion or belief). Rabat provides further guidance: its six-part threshold test also calls for States to examine the intent of the speaker to incite a specific harm, as well as a range of contextual factors which assist in determining imminence, including the speaker’s identity and the reach of the speech.[iv]
This deliberately high threshold for limitations is a safeguard against two kinds of legislative abuse, recognised by the Rabat Plan and Bielefeldt’s report. Firstly, abuse in the form of impunity for serious incitement that meets the threshold described above, a phenomenon most endemic where minorities are targeted. Secondly, incitement laws that on their face cohere with Article 20(2) ICCPR, but are employed against the very groups they are designed to protect, notably religion or belief minorities or dissenters, including atheists, agnostics and converts. Ensuring accountability for the horrendous abuses facing these individuals must be integrated into our understanding of resolution 16/18’s importance, and the rapporteur calls for states to address both kinds of abuse.
Crucially, the special rapporteur implores States to repeal blasphemy laws, “as such laws may fuel intolerance, stigmatisation, discrimination and incitement to violence and discourage intergroup communication.”[v] This reinforces a central recommendation of the Rabat Plan, which itself incorporates the guidance of the UN Human Rights Committee on this issue.
Bielefeldt distinguishes blasphemy from “incitement” on the basis that international law protects human beings as rights-holders, and does not abstract ideas or religions; it corresponds that there is no right for beliefs, no matter how deeply felt, to be protected from criticism or ridicule. Indeed, the rapporteur argues that the imposition of blasphemy charges are often their own form of incitement to violence against those charged, who are often minorities.[vi]
States should not tire of repeating in the Council the recommendation that all States repeal blasphemy laws, in particular during the interactive dialogue with Bielefeldt during the 31st Session.
Consolidating consensus through implementation
For pragmatists at the HRC, resolving normative divergence on this sensitive issue may seem too distant a goal. Working towards that goal should not preclude maintaining and consolidating consensus, and it is crucial to demonstrate that positive implementation is happening within the agreed framework, and that it works. States should be encouraged to pilot actions that are in the spirit of the resolution, and use the Istanbul Process as a forum for exchange and learning best practice to inform further domestic action. The benefit gained from this is a robust and evidence-based argument against stakeholders that may cynically exploit normative divergence to derail consensus or distract from implementation.
Third Istanbul Process Meeting, Geneva, June 2013
The Rabat Plan has much to offer pragmatists here. The particular value of the Rabat here is two-fold, in the spirit of resolution 16/18 it proposes: (1) a greater range and depth of practical policy actions, and (2) a multi-stakeholder approach that encompasses not just government (rightly identified as the primary duty-bearer in resolution 16/18), but also the positive role of other essential change agents: civil society, national human rights institutions, religious leaders, the media, educators, and a free and open Internet.
Bielefeldt draws much from the Rabat Plan, and recommends it, not merely for its normative accomplishments but also as a blue print for practical action.
The Rabat Plan is premised on the primacy of non-coercive measures, to maximise open discourse that addresses the root causes of intolerance. The positive engagement of a range of stakeholders is essential if this is to be achieved, as they are better placed to challenge existing prejudices and constructing new societal attitudes. “Changing hearts and minds” takes sustained resources, substantial political will, and time.
It is unfortunate that political investment in the Istanbul Process appears to have slipped in recent years. In meetings, focus on sharing practical experience of implementation appears to have been substituted with a ‘talking shop’, focussed on the entrenched ideological divergences of a few dominant countries. This shift has correlated with a nosedive in the number of States opting to report to OHCHR on implementation of the resolution.
The Rabat Plan may hold the key to reinvigorate and maximise the potential of the Istanbul Process.
The five regional and international expert OHCHR consultations that led to the Rabat Plan provide a crucial lesson: greater geographic diversity of participant States, particularly of host nations, would ensure a truly universal perspective on intolerance as a global phenomenon, and maximise the opportunities for learning from the broadest practical experiences. These exchanges will only meaningfully advance implementation if the agenda places multiple domestic ministries and agencies at their centre; if the Istanbul Process remains a travelling caravan of Geneva diplomats (in particular those with the most entrenched views) it will be the architect of its own demise.
The variety of stakeholders identified in the Rabat Plan should prompt States to make the Istanbul Process more inclusive, for example by providing opportunities for national human rights institutions and equality institutions to share their successes and challenges in tackling discrimination. In parallel, civil society and independent media could exchange positive practices in challenging prejudice. Ensuring these stakeholders were representative of all regions would reinforce a universal approach, and maximise a cross-fertilisation of experience-based solutions. It would underscore the importance of safeguarding civil society space at a time where religious intolerance or inter-group tensions are more frequently being cited as a basis for closing space.
Incorporating alternative civil society perspectives into the Istanbul Process would assist States in taking a more introspective approach to their implementation efforts, while raising awareness of resolution 16/18 among a greater variety of domestic actors. For the same reasons, exclusion of civil society from the implementation reports requested of OHCHR should be addressed. Changes on both these fronts would make clear that addressing the ‘implementation gap’ on resolution 16/18 is more than empty rhetoric.
Distinguishing “violent extremism”
In the present geopolitical climate, discussions around acts and ideologies of “violent extremism” are frequently associated with phenomena of religious intolerance, and parallels are subsequently drawn between the efforts to “counter” or “prevent” the two.
The UN Secretary General’s recently launched “Plan of Action to Prevent Violent Extremism”, which has been criticised in some quarters and welcomed in others, cites the implementation of the OHCHR’s Rabat Plan of Action among its recommendations (though is inexplicably silent on resolution 16/18).
First HRC Resolution on Human Rights and Preventing and Countering Violent Extremism, October 2015
When considering the imperative of safeguarding security, there is a need to consider with caution the lost opportunities that may occur if implementation of resolution 16/18 and the Rabat Plan is subsumed within the project of countering or preventing “violent extremism” (PVE).
PVE initiatives, where based on clear definitions and supported by proper evidence for harm reduction, and that respect human rights, can be positive, but these standards are not always upheld. Recent history has demonstrated that national security, as with inter-religious or communal “tensions” or “discord”, can be cited to justify unnecessary or disproportionate restrictions on human rights and fundamental freedoms, in particular where there are issues around definitional clarity. While resolution 16/18 and the Rabat Plan provide ingredients towards rights-respecting (and therefore secure) societies, not all initiatives in the name of PVE necessarily advance the freedoms of expression or religion and belief or equality, and may even be counterproductive.
We should consider carefully the threats to the goals of resolution 16/18 and the Rabat Plan posed by their removal from their original contexts to a looser “national security” framework. Protecting the freedoms of religion or belief and expression, and protecting against discrimination, are important ends in themselves that should be maintained as such.
Conclusion
Five years after its adoption, it is time for the Council to seriously address the “implementation gap” between the promises of resolution 16/18 and realities on the ground. This is increasingly important in a climate where the freedoms of expression and religion or belief are under strain globally.
Special Rapporteur Heiner Bielefeldt’s final report to the Council is a robust and clear articulation of the way forward, including taking this conversation outside “the Geneva Bubble”. Its precision in detailing the applicable legal framework and its clarity in identifying practical actions warrant close attention, and should revive domestic implementation.
Normative divergence between States should not preclude implementation of what has already been agreed in resolution 16/18, neither should it be used to cynically derail this landmark achievement. The Rabat Plan should be engaged with more substantively to guide these efforts, including through a reinvigorated, cross-regional and participatory Istanbul Process that focuses on the sharing of experience by domestic actors. Non-coercive measures which work to address the root causes of intolerance will only be effective where more stakeholders are engaged, including national human rights institutions and civil society. Understanding restrictions on expression as exceptional, and a last resort, repealing blasphemy laws, and ending the abuse of vague incitement laws are also crucial to reverse the closing of civil society space.
As the Council enters its second decade, the test of its effectiveness will not be the ability of States to maintain consensus on resolution 16/18, but rather their resolve to consolidate this consensus through implementation that truly safeguards the freedoms of religion or belief and expression.
Andrew Smith, Legal Officer at ARTICLE 19 was a contributor to the Universal Rights Group report “Combatting global religious intolerance: the implementation of Human Rights Council resolution 16/18“ (December 2014), and leads ARTICLE 19’s work to defend the right to freedom of expression and information at the UN in Geneva.
End notes
[i] See, for example: Report of the UN High Commissioner for Human Rights on “Combating intolerance, negative stereotyping, stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief”, A/HRC/28/47, 19 January 2015.
[ii] Though the most recent iteration of resolution 16/18 (Resolution HRC 28/29) passed by consensus in March 2015, the scope of the right to freedom of expression vis-à-vis religious sensitivities remained one of the most divisive issues at the Council throughout the year. This culminated in June with the withdrawal of the draft resolution on “the right to freedom of expression in the form of art” (L.20), following proposed hostile amendments reviving language from the controversial 2010 resolution on “defamation of religions”.[ii] This threatened to reopen in the Council the ideological fracture that resolution 16/18 bridged, and made unattainable in that instance a consensus reflecting that freedom of expression and freedom of religion or belief are mutually reinforcing rights.
[iii] The Human Rights Committee has made clear that the obligation to prohibit incitement under Article 20(2) of the ICCPR must still meet the three-part test under Article 19(3). See: General Comment No. 34, CCPR/C/GC/34, 12 September 2011, at paras 50 – 52.
[iv] The six “threshold factors” are: (i) the social and political context, (ii) the speaker, for example his or her status and influence, (iii) the intent of the speech, (iv) the content or form of the speech, (v) the extent of the speech (vi) the likelihood and imminence of actually causing harm. This test is explained in greater detail in “Prohibiting Incitement to Discrimination, Hostility or Violence”, ARTICLE 19, December 2012.
[v] Report of the Special Rapporteur on freedom of religion or belief, 23 December 2015, at para. 84. See also, Human Rights Committee, General Comment No. 34, op. cit., at para. 48.
[vi] Ibid., at para. 60.
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