Religious Freedom and Blasphemy Law in a Global Context: The Concept of Religious
 Defamation

Mirjam van Schaik

Freedom of religion or belief is incorporated in the constitutions of many Western states. A classical human right , it has been adopted in international conventions. In general, universal human rights have been agreed upon by the international community, accepted as an international norm, and defined as fundamental and authoritative.1

There are various places in the world where strict measures to restrict this fundamental right have been taken. A special status is granted to a particular religion; apostasy is outlawed under the criminal code, as is blasphemy for causing offense to religious feelings.

In one severe abuse of freedom of religion, religious freedom has been amalgamated with political strategies or policies of protecting the reputation of religions against defamation. For almost twenty years, the Organization of Islamic Cooperation (OIC) has put forward resolutions on the issues of “combating defamation of religions” and “combating religious intolerance” in the United Nations Commission on Human Rights, in its successor the Human Rights Council, and in the General Assembly.

The Organization of Islamic Cooperation

The OIC was formally established as the Organization of the Islamic Conference in May 1971 (it took its present name in 2011). Based in Jeddah, Saudi Arabia, it claims to represent the universal Ummah, a world community of more than 1.5 billion Muslims.

After the United Nations (UN), the OIC is currently the largest intergovernmental organization, with fifty-seven members. It is unique in being a religious intergovernmental organization with permanent observer status at the UN. This entails that the OIC has free access to most UN meetings, a standing invitation to participate as an observer in sessions of the General Assembly, and a permanent office at UN headquarters in New York.

Disputing Universality

For several decades, the OIC has disputed the universality of the UN’s Universal Declaration of Human Rights (UDHR) and the human-rights framework that has been built upon it. During a 1981 meeting of the General Assembly, a representative of the Islamic Republic of Iran stated that “all rules regarding human rights must be founded exclusively on principles of divine ethics, and justice must be defined in terms of eternal moral principles.”

This indicates the core of the OIC’s view: human rights are not founded on universal secular principles but on divine ethics.

This sensibility informed the drafting of several Islamic human rights documents in the region, such as the Universal Islamic Declaration of Human Rights and the Arab Charter on Human Rights. However, these documents did not have the same impact or prevalence as the Cairo Declaration on Human Rights in Islam (CDHRI), adopted in 1990. This agreement was drafted during the Cairo Islamic Conference of Foreign Ministers of the OIC. The preamble to the CDHRI declares that “fundamental rights and universal freedoms in Islam are an integral part of the Islamic religion and that no one as a matter of principle has the right to suspend them in whole or in part or violate or ignore them in as much as they are binding divine commandments.”

With the Cairo Declaration, the OIC laid down distinctive Islamic principles that conflicted with UN human rights law, not only restricting fundamental human rights but subjecting them to superseding Islamic norms. The Cairo Declaration declares that in the member states of the OIC, all human rights must be addressed from an Islamic perspective and that all rights and freedoms are subject to Islamic law (Sharia). No right to freedom of religion is included, since its Article 10 forbids the practice of—or conversion to—any religion other than Islam.

The Ten-Year Program and a New Charter

In 2005, the OIC prepared a ten-year action program for “the Muslim Ummah to achieve its renaissance.” Several scholars described this action as a positive change of course in the OIC’s human rights policy, citing among other things its call to establish an independent body to promote human rights, the Independent Permanent Human Rights Commission (IPHRC). One scholar hailed it as “a newfound commitment to human rights issues within the OIC…. A shift away from the Organization’s past cynicism on human rights.” This view overlooks the fact that, according to Section VIII, Paragraph 2 of the action program, the establishment of the IPHRC had to be in accordance with the principles of the Cairo Declaration. The Cairo Declaration does not even recognize the fundamental human right of freedom of religion or belief, and it recognizes certain other freedoms only when they are in accordance with Islamic law.

The term human rights in the title of the commission does therefore seem to be rather misleading.

Three years later, the OIC implemented its current charter. The charter gives the impression that it is an improvement over the ten-year program, since it no longer refers to the Cairo Declaration and its notion of Sharia law. The new charter further provides that OIC members “adhere … [to their] commitment to the principles of the United Nations Charter, the present Charter and International Law,” and “promote human rights and fundamental freedoms, good governance, rule of law, democracy and accountability in Member States.”

At first glance, this resembles progress. However, the same paragraph states that these commitments need to be in accordance with the constitutional and legal systems of the particular member state. In general, the OIC member states have a strong state religion. Some are theocracies that suppress all religious diversity. This creates religious legitimacy for the OIC members to escape their UN human rights obligations, even though most of them are signatories to the international human rights treaties and are legally bound by them.

Also relevant is the fact that Article 1 of the new charter contains a paragraph that defines the OIC’s objective as “to protect and defend the true image of Islam” and “to combat defamation of Islam.”

With this addition, the OIC members formally enshrined these concepts in their charter, creating legitimacy for the course they have been sailing over the years, a course that has dominated the Human Rights Council and General Assembly since 1999.

The OIC’s Motivations

What led the OIC to introduce the concept of defamation of Islam before the UN Commission on Human Rights (UNCHR) in 1999? At least three developments can be distinguished that contributed to this action. In the first place, it is all about upholding the appearance of Islam, that is, the image of Islam in general (this is in line with the view of Lorenz Langer, a lecturer at the University of Zurich). The second development involves the consequences of the fatwa that Ayatollah Ruhollah Khomeini issued against Salman Rushdie for writing The Satanic Verses. Third (again drawing on Langer), it is a response to reprimands that several OIC member states received in various UN forums.

The first development, the idea of defense of the image of Islam, emerged at the third Islamic Summit Conference (Mecca, 1981). During this Summit, the members of the OIC agreed to “develop . . . mass-media and information institutions, guided in this effort by the precepts and teachings of Islam, in order . . . that our nation may be able to show to the world its true qualities, and refute the systematic media campaigns aimed at isolating, misleading, slandering and defaming our nation.” In this quotation, the term nation must be understood as Islam in general. In addition, the focus is not solely the image of Islam for Muslims, or within the OIC countries, but specifically perception of Islam by non-Muslims worldwide.

The OIC pursued this course until Salman Rushdie’s The Satanic Verses was published in 1989. Rushdie’s work was “strongly condemned” by the OIC; Rushdie was regarded as an apostate and his work a blasphemous publication. The OIC called for action in a Declaration on Joint Islamic Action to Combat Blasphemy against Islam. The goal was no longer merely to create institutions to “inform people about Islam”; now it was time to “take action,” that is, set norms to protect their religion.

In this regard, the Dakar Islamic Summit, held two years later, is important. The resulting Dakar Declaration obliged member states to “counter individually and collectively, any campaign of vilification and denigration waged against Islam and its sacred values as well as the desecration of the Islamic places of worship.” Then the OIC went a step further. It drafted a resolution titled On Adopting a Unified Stand on the Attack of Islamic Sanctities and Values [emphasis mine], which requested the Secretary-General “to take the necessary measures for the drafting of an international convention [emphasis mine] to ensure respect for sanctities and values.” They appealed to the Secretary-General “to prepare and submit [at] the next International Conference of Foreign Ministers a study on the conclusion of an international legal instrument [emphasis mine].”

Over the years, the broadening of the OIC’s objectives—from wanting to positively inform about Islam to appealing for an international legal instrument to protect the religion—was thus influenced by Rushdie’s work. It is remarkable to see what a novel can lead to.

The third development that contributed to the start of the defamation resolutions in 1999 was the reprimands individual OIC member states had received in various UN forums. In particular, the reports of the UN Special Rapporteurs on Religious Intolerance and its successor, Freedom of Religion or Belief, were critical. For instance, in 1994 the annual report of the Special Rapporteur of Religious Intolerance, Abdelfattah Amor, mentioned that in Saudi Arabia “the legal system . . . allows flogging, amputation and beheading for the punishment of . . . comments on religion.” It described other cases where people arrested on charges of blasphemy faced possible execution. Saudi Arabia’s response was fierce: it charged that the report was filled with “false interpretations of the Islamic religion and Islamic practices” and called the rapporteur not qualified “to assess the Islamic religion.” It even questioned whether this “disturbing disinformation on Islam and the Islamic people” was “a sort of a new ‘crusade’ which is so familiar in international politicking under the banner of the ‘white men’s burden.’” In the same report, Amor criticized Sudan for seriously infringing the right to freedom of religion. Cases were described in which several people were arrested and detained for practicing a religion other than Islam. Sudan’s reaction was equivalent to Saudi Arabia’s; the allegations were dismissed as “false” and “absurd.” A country visit to Pakistan in 1996 also led to a very critical report, in which discriminatory legislation regarding religious minorities and the blasphemy laws with their severe penalties were especially criticized.

The reprimands continued to pile up. Growing resentment against the UN by OIC member states eventually contributed to the OIC making an explicit call to combat defamation of religions.

The Introduction of Defamation of Religion Before the UN

The OIC introduced the concept of religious defamation to the UN on April 20, 1999. Pakistan introduced the draft resolution, Defamation of Islam. It focused on negative stereotyping and intolerance toward Islam. States were urged to “take all necessary measures to combat hatred, discrimination, intolerance and acts of violence, intimidation and coercion motivated by religious intolerance, including attacks on religious places.”

The representative of Germany responded on behalf of the states of the European Union, underlining that “the European Union was attached to the principles of tolerance and freedom of conscience, thought and religion for all,” but was of the opinion that the general structure of the proposal was not in balance, since it mentioned only the negative stereotyping of Islam. Germany therefore introduced amendments to broaden the scope of “negative stereotyping” to include all religions and changed the title of the resolution to Defamation of Religions. The Pakistani representative was not pleased with the proposed amendments and stated that “the problem faced by Islam was of a very special nature.” He continued that “the amendments submitted by Germany were designed to remove most of the specific references to Islam contained in the draft resolution, but that would defeat the purpose of the text, which was to bring a problem relating specifically to that religion to the attention of the international community.”

Still, on the next day the parties reached a seeming consensus, drafting a resolution with a general title that included all religions, adopted as Resolution 1999/82, Defamation of Religions. In the resolution, no definition was given of religious defamation.

The Pakistani representative stated that “the OIC countries had shown considerable flexibility by agreeing to adopt a nonexclusive approach to the issue.” The German representative stated that although “an agreement [was] reached [it] should not . . . hide the fact that a high degree of uncertainty remained as to the expediency of the Commission’s continuing to deal with the issue in that way and in that context. . . . While joining the consensus on the draft, [they] wished to make it clear that they did not attach any legal meaning to the term ‘defamation’ as used in the title.”

EU member states clearly realized that adoption of the religious-defamation resolution would have consequences for the normative contours of the human-rights framework. Instead of dismissing the OIC’s line of reasoning, they assumed an accommodating stance, merely remarking that the general structure of the resolution was imbalanced and that it had to be broadened so that all religions would be dealt with equally. But this gave the OIC room to maneuver; thus the concept of religious defamation was introduced into UN discourse.

Unfortunately, the EU member states did not foresee what impact their accommodating attitude would have in the coming decade.

From Consensus to Majority Vote

In 2000, Pakistan introduced a resolution on defamation of religion. It was adopted by consensus in the UNCHR despite misgivings on the part of Portugal on behalf of the EU. In 2001, Pakistan introduced another resolution, Combating Defamation of Religions as a Means to Promote Human Rights, Social Harmony and Religious and Cultural Diversity. This time the EU took a different stance, emphasizing that the freedoms of expression and religion are fundamental manifestations of tolerance in society and stressing that freedom of expression is the condition sine qua non of civil dialogue. EU member states tried to dissuade the OIC from focusing on the protection of religions, rather than on the human rights of individual adherents to these religions.

OIC members took no heed. The draft resolution was adopted by twenty-eight votes in favor to fifteen against, with nine abstentions. With this E/2001/4 resolution, the UNCHR encouraged states “to provide adequate protection against all human rights violations resulting from defamation of religions and to take all possible measures to promote tolerance and respect for all religions.”

This course of events would repeat itself in subsequent years (2002–2005). Resolutions with similar—or more extensive—content would be adopted by majority vote, that majority consisting largely of OIC member states.

Expansion to the General Assembly

In the aftermath of the Danish cartoon crisis (2005–2006), the concept of religious defamation expanded to another, larger UN platform. Yemen, on behalf of the OIC, introduced the draft resolution Combatting Defamation of Religions before the UN General Assembly (UNGA). EU member states made clear that they would not be on board, for the reasons repeatedly given in previous years in the UNCHR. But to no avail: religious defamation became a fact in the international community when draft resolution A/C.3/60/L.29 was adopted with eighty-eight votes in favor, fifty-two against, and twenty-three abstentions.

In the following years, the OIC continued to achieve its agenda in various UN forums. After the UNCHR was disbanded in 2006, the OIC saw resolutions regarding religious defamation passed by its successor, the United Nations Human Rights Council (UNHRC).

The concept of defamation of religion achieved high visibility within the UN. The number of references to the concept increased considerably. In its observatory report on Islamophobia in 2009, the OIC felt that it had enough authority to state: “It needs to be appreciated that [OIC’s] position has over the past decade repeatedly been observed to command support by a majority of the UN member states—a support that transcended the confines of the OIC member states. The succession of UNGA and UNHRC resolutions on the defamation of religions makes it a standalone concept with international legitimacy.”

The OIC seemed to argue that the succession of successful resolutions had created a basis for an international norm criminalizing religious defamation. One must ask: To what extent is “succession” seen as a foundation for legally recognizing an international punitive standard? This can be concisely answered: within international legal theory, succession is not a justification for adopting an international (criminal) standard.

Still, numerous resolutions had been passed calling for “the enactment or strengthening of domestic frameworks and legislation to prevent the defamation of religions,” emphasizing “the need to effectively combat defamation of all religions” and stressing that “the right to freedom of expression . . . may be subject to limitations as provided by law and necessary for . . . respect for religions and beliefs.” These resolutions called for states to take strict measures to restrict the freedom of expression.

It was not only a call for censorship but an international call to criminalize blasphemy.

It is remarkable that in none of the resolutions is a definition of “religious defamation” given.

It must also be questioned whether the concept of defamation of religion is sustainable at all. After all, is not every religion by its nature the defamation of other religions? The representative of Pakistan has to understand that when he states that Muhammad is the Seal of the Prophets, he is defaming the faith of the Baha’i, for they recognize later prophets. And when Christ is seen as the son of God, this is blasphemous from a Jewish perspective.

Accordingly, it seems safe to conclude that religious defamation is an ambiguous concept, its scope wide enough to encompass different kinds of chilling effects on the freedoms of religion and expression. With the defamation resolutions, the OIC amalgamated freedom of religion with political policies, diminishing its original intent and scope. And by implicitly undermining its content, and explicitly undermining its non-distinctive application, the OIC politically derogated religious freedom from its status as a fundamental, universal human right.

Resolution 16/18: Combating Religious Intolerance

The year 2009 brought a noticeable change. A joint petition was presented, signed by more than two hundred civil-society organizations—including religious, humanist, and atheist groups—urging UNHRC member states to reject that year’s defamation resolution. For the first time, the combined abstentions and votes against the defamation resolutions numbered more than the votes in favor. The same occurred in the UNGA, and there was an even further decline in support in 2010.

In 2011 came a seeming turnaround, even a breakthrough. The OIC introduced into the UNHRC resolution 16/18 on Combating Intolerance, Negative Stereotyping and Stigmatization of, and Discrimination, Incitement to Violence and Violence against Persons Based on Religion or Belief. The resolution was adopted with consensus on March 24, 2011, and has since functioned as a guiding document for discussion within the UN.

Resolution 16/18 no longer refers explicitly to defamation of religion. It refers to persons, so it seems to protect the individual rather than religions, more in line with established conceptions of human rights. Yet other concepts included in the resolution present more or less the same ambiguity as “defamation of religions,” for example, “derogatory stereotyping,” “negative profiling,” and “stigmatization.” In general, these vague concepts lack both definition and criteria and risk being subject to various interpretations.

Disconcertingly, only a few months after the adoption of Resolution 16/18, the OIC’s Council of Foreign Minsters adopted a new resolution on the topic of combatting defamation of religions.

Clearly, Resolution 16/18 was not the turnaround the West thought it would be. Why?

When placed in context, it looks like a mere change in OIC’s tactics. First, it was evident that OIC’s continual rhetoric about Western states violating the freedom of expression by failing to ban insults to religion, or to criminalize defamation of religion, was no longer working. Second, the OIC recognized declining international support for its anti-defamation resolutions, while Western opposition to them remained firm. Last, the OIC may have realized that its hijacking of different UN forums in the pursuit of defamation resolutions was damaging its own reputation as world representative of the Ummah, posing a threat that it might no longer be taken seriously by the Western states as an equal debating partner when discussing human rights in the future.

Conclusion

The OIC is using the freedom of religion as the basis for its battle against newly introduced and ambiguous concepts such as negative profiling, derogatory stereotyping, and stigmatization of persons based on religion (with an implicit focus on Islam). However, this semantic adjustment has not changed the OIC’s original stance. It still has the same objectives, only now it is trying to realize them from a different, more disguised angle. By using this approach the OIC can continue its efforts to politically undercut the universality, status, and content of the right to religious freedom.

 


  1. Article 18 of the International Covenant on Civil and Political Rights (ICCPR) states that everyone has the right to freedom of thought, conscience, and religion. Although not binding, Article 18 of the United Nations Universal Declaration of Human Rights (UNUDHR) is also relevant, for it has influenced many constitutions globally and has functioned as a foundation for several national and international legal documents.

Mirjam van Schaik

Mirjam van Schaik is lecturer and researcher at Leiden University, the Netherlands. She has degrees in law and philosophy, and her main research interests lie in the fields of legal and political philosophy—more specifically, the freedom of religion, blasphemy laws, and the separation of church and state. This article is condensed and adapted from a much lengthier and fully annotated essay in The Fall and Rise of Blasphemy Law, edited by Paul Cliteur and Tom Herrenberg (Leiden University Press, 2016).


“In one severe abuse of freedom
of religion, religious freedom has been amalgamated with political strategies or policies of protecting the reputation of religions against defamation.”

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