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8/14/2019 Religious Hate Speech Presentation_1
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Dr. Jeroen Temperman, Erasmus University Rotterdam
Freedom of Expression & ReligiousSensitivities in Pluralist Societies:
A Human Rights-Based Rejection of CombatingReligious Defamation & A Conceptualization of the
Prohibition of Religious Hate Speech
8/14/2019 Religious Hate Speech Presentation_1
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Dr. Jeroen Temperman, Erasmus University Rotterdam
Freedom of Expression & Religious Sensitivitiesin Pluralist Societies
Outline:
Historical background to problematique
State practice: defamation & hate speech Approach UN Political Bodies vs. Approach
UN Expert Bodies
European Convention SystemConceptualization of the prohibition ofreligious hate speech
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Religious Sources
Monotheistic world religions & Blasphemy:
Tanakh
Christian Bible
Qur‟an
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Leviticus 24:10 –23
“Now an Israelite woman‟s son, whose father was an Egyptian, went outamong the people of Israel. And the Israelite woman‟s son and a man ofIsrael fought in the camp, and the Israelite woman‟s son blasphemed the
Name, and cursed. Then they brought him to Moses. His mother‟s name wasShelomith, the daughter of Dibri, of the tribe of Dan. And they put him incustody, till the will of the LORD should be clear to them. Then the LORDspoke to Moses, saying, "Bring out of the camp the one who cursed, and letall who heard him lay their hands on his head, and let all the congregationstone him. And speak to the people of Israel, saying, Whoever curses his Godshall bear his sin. Whoever blasphemes the name of the LORD shall surely be
put to death . All the congregation shall stone him . The sojourner as well asthe native, when he blasphemes the Name, shall be put to death…" So Mosesspoke to the people of Israel, and they brought out of the camp the one whohad cursed and stoned him with stones. Thus the people of Israel did as theLORD commanded Moses” (English Standard Version, emphasis added).
Dr. Jeroen Temperman, Erasmus University Rotterdam
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The Holy Qur’an: 9:74 “They swear by Allah that they said nothing (evil),but indeed they uttered blasphemy, and they did itafter accepting Islam; and they meditated a plotwhich they were unable to carry out: this revenge oftheirs was (their) only return for the bounty withwhich Allah and His Messenger had enriched them! Ifthey repent, it will be best for them; but if they turn
back (to their evil ways), Allah will punish them witha grievous penalty in this life and in the Hereafter :They shall have none on earth to protect or helpthem” (tranl. Abdullah Yusuf Ali, emphasis added).
Dr. Jeroen Temperman, Erasmus University Rotterdam
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State Practice – General Observations
Blasphemy/defamation bans initially designed to protect
official/predominant religion specifically
„Christian‟ blasphemy prohibitions (cannon or common law)criminalized intentionally shocking or harming the religiousfeelings of the community
„Islamic‟ blasphemy ban: tighter nexus with prohibition ofapostasy/conversion (away from Islam)
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Exceptions: e.g. sec. 36 of Ch. 272 of theCriminal Code of Massachusetts
“Whoever wilfully blasphemes the holy name of Godby denying , cursing or contumeliously reproachingGod, his creation, government or final judging of theworld, or by cursing or contumeliously reproachingJesus Christ or the Holy Ghost, or by cursing orcontumeliously reproaching or exposing to contemptand ridicule, the holy word of God contained in the
holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of notmore than three hundred dollars, and may also bebound to good behavior” (emphasis added).
Dr. Jeroen Temperman, Erasmus University Rotterdam
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State Practice – PredominantlyChristian States
E.g .
UK: blasphemy ban intended to solely protect(Anglican) Church of England
UK‟s (abrogated) ban „exported‟ toCommonwealth nations
Ireland Scandinavia
Greece
Dr. Jeroen Temperman, Erasmus University Rotterdam
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State Practice – PredominantlyIslamic States
o Fairly ubiquitous
o No „dead letter‟ o Tight nexus between blasphemy andapostasy
o Blasphemy laws occasionally (ab)usedto crackdown on:• political dissidents (e.g. Iran)
• „heretic‟ religious minorities (e.g. Pakistan)
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Pakistani Example
“Offences Relating to Religion” -Chapter ofPenal Code: defiling of the Qur‟an,Muhammad or other Islamic holy personagesis punishable with life imprisonment, death or
temporary imprisonment respectively.
Anti-Ahmadi laws (1974/1984)
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Anti-Ahmadi laws “Any person …calling himself “Ahmadi” or by any other name who by words,either spoken or written, or by visible representation:
a) refers to or addresses, any person, other than a Caliph or companion of the
Holy Prophet Muhammad (peace be upon him), as “Ameer-ul-Mumineen”, “Khalifatul-Mumineen”, “Khalifa-tul-Muslimeen”, “Sahaabi” or “Razi Allah Anho”;
b) refers to, or addresses, any person, other than a wife of the Holy ProphetMuhammad (peace be upon him), as “Ummul-Mumineen”;
c) refers to, or addresses, any person, other than a member of the family “Ahle-bait” of the Holy Prophet Muhammad (peace be upon him), as “Ahle-baft”; … shall be punished with imprisonment of either description for a term whichmay extend to three years, and shall also be liable to fine ...
An Ahmadi who “in any manner whatsoever outrages the religious feelings ofMuslims” shall be punished with imprisonment or a fine.”
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Religious Hate Speech Legislation
(Religious) Hate Speech Bills, e.g. UK, Australia, 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
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International Approach to theInterplay Between FoR & FoE
Distinction:
UN Political Bodies
UN Expert Bodies
Dr. Jeroen Temperman, Erasmus University Rotterdam
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UN Political Approach: Counter All
Religious Defamation
Combating-Defamation Resolutions:
“…everyone has the right to hold opinions without interferenceand the right to freedom of expression, and that the exercise ofthese rights carries with it special duties and responsibilities andmay therefore be subject to limitations as are provided for bylaw and are necessary for respect of the rights or reputations ofothers, protection of national security or of public order, public
health or morals and respect for religions and beliefs …”
E.g. GA Resolution 62/154 of 18 December 2007, para. 10 (emphasis added). Similarly, e.g.: GA Resolution61/164 of 19 December 2006, para. 9; and Human Rights Council Resolution 4/9 of 30 March 2007, para.10.
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Conclusion Counter-Defamation Approach
(i) seeks to shift the emphasis from protection of the rights ofindividuals to protection of religions per se ;
(ii) introduces grounds for limitation of human rights, particularlyof the right to freedom of expression, that are not recognizedby international human rights law (e.g. respect for religions,respect for people‟s religious feelings);
(iii) seeks to reformulate the right to freedom of religion or beliefso as to include a right to have one‟s religious feelingsrespected.
Dr. Jeroen Temperman, Erasmus University Rotterdam
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International Legal Approach: UN Expert
Bodies
o No right to have one‟s religion or belief at alltimes exempted from criticism, ridicule orinsult or a right to respect for one‟s religiousfeelings
o The „right of others to freedom of religion orbelief‟ is a legitimate ground for limitation but
high threshold criteria must be metE.g. Human Rights Committee, Malcolm Ross v. Canada ; Human Rights Committee, draft-GeneralComment 34 on Article 19; Joint Report A/HRC/2/3 by UN Special Rapporteurs on Freedom of Expressionand on Freedom of Religion
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Rights of others to freedom of religion or
belief as ground for limitation of FoE
This ground for limitation:
(i) should not be equated with a right to respectfor one‟s religious feelings; and
(ii) forms of criticism, ridicule or insult of religiondo not necessarily constitute a limit or threat
to other people‟s freedom of religion or belief:onus is on state to prove concrete risk of thirdparties‟ rights being undermined by publicexpression.
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Conclusion UN Expert ApproachCrucial distinction between:
legal (albeit perhaps morally deplorable)
forms of religious defamation; vs.illegal forms of religious hate speech.
Advantages: mechanism is already in place;
fosters both FoR & FoE;
hate speech can be objectified; whilst insult is too subjective acriterion to limit free speech;
less scope for governmental abuse.
Dr. Jeroen Temperman, Erasmus University Rotterdam
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European Court HR & ReligiousDefamation
3 objectionable trends:
i. Development of abstract notion of a „right not to be insulted inone‟s religious feelings‟
ii. ECtHR fails to realize that there is no conflict between FoE &FoRB in abstracto :
• actual (rare) clashes need to be substantiated;• proper, critical balance must be struck
iii. ECtHR sanctions discriminatory laws
Dr. Jeroen Temperman, Erasmus University Rotterdam
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(i) A ‘right not to be insulted inone’s religious feelings’?
“the right of citizens not to be offended in their religious feelingsby publications” (Gay News )
“the respect for the religious feelings of believers as guaranteedin 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 andbeliefs of others” (Murphy )
Dr. Jeroen Temperman, Erasmus University Rotterdam
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(ii) conflict between FoE & FoRBin abstracto?
E.g.: İ.A. v. Turkey:
Freedom of expression (publisher) restricted on the basis ofexisting ground for limitation (“right of others to respect fortheir freedom of thought, conscience and religion”); however,
no inquiry whatsoever into the Q as to whether the two
rights indeed conflict in this particular case Balancing rights without a legal necessity to do so might
actually lead to infringements
Dr. Jeroen Temperman, Erasmus University Rotterdam
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(iii) ECtHR sanctions
discriminatory laws
E.g. Wingrove & Gay News :
“It is true that the English law of blasphemy only extends to theChristian faith. … The uncontested fact that the law ofblasphemy does not treat on an equal footing the differentreligions practised in the United Kingdom does not detract from
the legitimacy of the aim pursued in the present context”
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Way forward
Further conceptualization of the state duty (art. 20(2) ICCPR) toprohibit religious hate speech; more particularly:
To conceptualize the prohibition of „religious hate speech ‟ as a notion ofinternational law;
To identify legal benchmarks and factors that help determine thephenomenon religious hate speech;
To identify state obligations emanating from the internationally codified
religious hate speech prohibition; To identify and overcome legal or political obstacles to full compliance
with the prohibition of religious hate speech.
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Article 20(2) International Covenanton Civil and Political Rights
“Any advocacy of…religious hatred thatconstitutes incitement todiscrimination, hostility or violence
shall be prohibited by law.”
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Conceptualization of ‘Religion
Hate Speech’ Prohibition
Scope:
Hate speech vis-à-vis a specificreligious group;
Religion-inspired hate speech.
Dr. Jeroen Temperman, Erasmus University Rotterdam
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Art. 137d Dutch Penal Code
“Any person who publicly, orally or inwriting or image, incites to hatred ordiscrimination against persons…onaccount of their religion or belief…may
be punished with imprisonment ofmaximally one year or a third categoryfine.”
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Draft-GC on Art. 19 & 20 ICCPR State obligations under 20(2):
Legislative action (prohibition of “extreme speech”) Ex post facto punishment: early warning system?
Definition of key terms: Advocacy: “By advocacy is meant public forms of expression that are intended toelicit action or response”
Hatred: “By hatred is meant intense emotions of opprobrium, enmity anddetestation towards a target group”
Incitement: “Incitement refers to the need for the advocacy to be likely to triggerimminent acts of discrimination, hostility or violence. It would be sufficient thatthe incitement relate to any one of the three outcomes: discrimination, hostility or
violence”. Relation to Art. 19:
“The acts that are address in article 20 are of such an extreme nature that theywould all be subject to limitations of Article 19, paragraph 3. As such, a restrictionthat is justified on the basis of article 20 requires also to comply with article 19,paragraph 3, which lays down requirements for determining whether restrictionson expression are permissible.”
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Art. 137d Dutch Penal Code
“Any person who publicly, orally or inwriting or image, incites to hatred ordiscrimination against persons…onaccount of their religion or belief…may
be punished with imprisonment ofmaximally one year or a third categoryfine.”
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Geert Wilders
“In 1945, Nazism was defeated in Europe.
In 1989, Communism was defeated inEurope.
Now the Islamic ideology has to be defeated.
Stop Islamization.
Defend our freedom.”
(p. 19 Subpoena 13/425046-09, Arrondissementsparket Amsterdam; quote from Fitna )
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Conceptualization of ‘Religious
Hate Speech’ Prohibition
Key questions:
Legal significance of the role/position of the person behind thespeech?;
What is the legal significance of the type of medium used?;
What the legal significance of demographical figures (religiousadherence) and the level of public peace within society?;
May or should the public denial of indisputable atrocitiessuffered by (vulnerable) religious minorities be qualified as hatespeech?;
In the context of religion-inspired hate speech, what is the legalsignificance of the right to freedom of religion or belief?
Dr Jeroen Temperman Erasmus University Rotterdam