Jeroen Temperman, Erasmus University Rotterdam The Prohibition of Incitement in International Law: The Case of Religion Jeroen Temperman, Erasmus University Rotterdam

“And here we keep our most holy relic” Example “And here we keep our most holy relic”

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

Example: Religiously Motivated Hatred

Example: Religious Leaders Abu Hamza al-Masri

Example: defamation of Islam + reactions Muslim world

Example 4: Politicians

Example 5: ‘Academics’ Roger Garaudy Robert Faurisson

Example 6: Journalists Paul Giniewski (France) Sürek (Turkey) Jersild (Denmark)

ECtHR & religious defamation/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 insulted in one’s religious 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 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 cases 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) ECtHR sanctions discriminatory 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 Covenant on Civil and Political Rights “Any advocacy of…religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” 16

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 Advocator publically made message intense degree of enmity Target Group Incitement discrimination, hostility or violence Audience

Human Rights Committee & Article 20(2) ICCPR Decisive factors: Text: the actual speech (not subjective reaction by targeted group): element of incitement or not? 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 & 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)?

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.)?

Mens rea Intention to disseminate Intention to target a specific group Triple intent requirement: Intention to disseminate Intention to target a specific group Intention to incite discrimination or violence State practice includes ‘recklessness’ and ‘reasonable person’ requirements.

2011 milestone: All unqualified blasphemy laws must be repealed 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)

‘Memory laws’ to be repealed 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)

Religious Hate Speech Legislation (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 Religious Hatred? Article 20 ICCPR odd-one-out Extra 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 2009-2011 Initial prosecutorial decision not to prosecute overruled by High Court Prosecution 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.

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