The United Nations’ Approach to Freedom of Expression

Resolution 16/18 and the Istanbul Process

Amelia Cooper

Saudi Arabia is notorious for its flagrant disregard of human rights, and has recently faced renewed international criticism for upholding Raif Badawi’s unjustifiable sentence of 1000 lashes and 10 years in prison for establishing a progressive blog that called for religious tolerance and women’s rights. Incarcerated on the grounds of ‘insulting Islam’, Badawi is a prisoner of conscience: his “crime” is exercising his right to freedom of expression. Saudi Arabia was therefore a surprising and unlikely choice of location for the last meeting of the Istanbul Process, a series of conferences dedicated to the combating of religious intolerance.

The Istanbul Process was created with the intention of ensuring the full and consensual implementation of United Nations Human Rights Council 16/18, entitled ‘Combating Incitement to hatred, discrimination and violence based on religion or belief’. The resolution, adopted in 2011 and reaffirmed in subsequent years, most recently in March 2015, marked a movement away from the problematic and divisive concept of “defamation of religions”. The “defamation of religions” agenda sought to protect religions, rather than religious adherents: such a position stands at odds with the notion of human rights, which (as one might expect) are afforded to individuals, rather than ideas.

Resolution 16/18 committed states to pursuing a rights-based approach in tackling discrimination, incitement and intolerance, and was justly celebrated by states and civil society actors alike. The resolution is practical in two ways; it calls upon states to ‘encourage the creation of collaborative networks’ and create a governmental mechanism to ‘identify and address potential areas of tension between members of different religious communities’, and furthermore encourages the training of governmental officials in effective outreach. The Istanbul Process is one such network, the essence of it being to further ‘a result orientated engagement’. It has convened delegates, experts and civil society actors five times since the adoption of 16/18. However, incidents of religious discrimination remain prevalent and are increasing worldwide, reinforced and legitimised by harsh blasphemy laws.

One need only glance at the international news to see that the goals of 16/18 and the Istanbul Process remain elusive: from the atrocities committed by the so-called Islamic State, to the persecution of minorities in Myanmar, to rising Islamophobia and anti-Semitism in the West, it is clear that there is a long way to go. It would, of course, be unrealistic to have hoped that the four years since the resolution’s adoption could have eliminated all sectarian conflict. However, Resolution 16/18 ‘represents the only universally-agreed policy framework to guide the international community’s response’ (though as we see below, universally does not mean unanimously): the gulf between state commitments and practical application is therefore unacceptable, and requires immediate redress. Much attention has been given to both technical and normative guidance, including the development of instruments such as the Rabat Plan of Action, which outlines the scope of state obligations under Article 20 of the International Covenant on Civil and Political Rights (ICCPR). The outcome of a four year initiative led by the Office of the High Commissioner on Human Rights, the Rabat Plan provides further clarification on the obligations of states (and responsibilities of other actors, including the media) regarding the prohibition of incitement to violence, hostility and discrimination. At the crux of the implementation gap, therefore, is not an information deficit or an absence of instruction: it is a lack of state will. 

Demonstrating State commitment to Resolution 16/18 must surely begin with ensuring that domestic legislation is in accordance with the international legal provisions with regard to freedom of religion or belief and freedom of expression. However, de facto blasphemy laws continue to exist in 55 countries, 39 of which punish the “crime” with incarceration. The international human rights consensus is clear: the use of blasphemy laws necessarily violates international law. The Human Rights Committee’s General Comment 34, in the authoritative interpretation of states’ obligations under Article 19 of the International Covenant on Civil and Political Rights explicitly repudiated the “defamation of religions” agenda.  Furthermore, numerous NGOs have noted that blasphemy laws heighten interfaith and inter-communal animus and serve to legitimise extrajudicial violence: they are the antithesis of the environment of respect and rights that 16/18 seeks to create. Yet more shocking is that apostasy is met with the death sentence in 13 countries – and, in a glaring expression of hypocrisy, four of those thirteen states are current members of the UN Human Rights Council – including Saudi Arabia.

The Istanbul Process convened last week in Jeddah, and was hosted by the Organisation of Islamic Co-operation. I spoke to Andrew Smith, legal officer and UN Representative at Article 19, who attended the conference: his primary concern was the persistence of a fundamental disagreement as to what Resolution 16/18 represents. Where it appeared that the (bulk of) Western states consider Resolution 16/18 and the concomitant guidelines as forming the final framework to address questions of freedom of expression and freedom of religion or belief, most OIC members seemed to treat it as a compromise position, the terms and interpretation of which remain up for debate. In essence, one side considers the foundations to have been set, while the other seeks a redrawing of the boundaries: they are operating on different ideological planes.

Such a sentiment was echoed by Sejal Parmar, international human rights lawyer, specialising in freedom of expression, based at the Central European University, Budapest. She noted that the scope and meaning of freedom of expression, particularly in its interface with insult and incitement (two distinct but frequently conflated terms), remains one of the most intractable controversies at the Council. The passage of Resolution 16/18 by consensus is by no means representative of a unanimous opinion on the boundaries of freedom of expression: these remain highly contested, and the movement away from discussions on defamation of religious has simply meant that the conflict has moved into different arenas besides the increasingly fraught Istanbul Process to issues such as “traditional values” or the “family”. That said, the reappearance of the defamation of religions agenda at the Council is far from impossible. What is required for the realisation of the goals of Resolution 16/18 and the Istanbul Process is a legislative and policy change within states, which depends on an attitudinal change: how to achieve this is the most important, and difficult, question that the Council faces.

During our conversations, Smith and Parmar noted a number of issues pertaining to the Istanbul Process, the redress of which could ameliorate the implementation gap. First, Smith commented on the high-level nature of the debate: rather than Ministers of Home Affairs or Culture being present (i.e. the individuals who would be responsible for enacting the changes encouraged by the Istanbul Process), states were represented by delegates and ambassadors. From this emerges a certain psychology: if the personnel of the Process tend to be international representatives (who have frequented the halls of the UN), they will operate in this area of expertise. It is in fact domestic policymakers who have the power to implement the guidance of Resolution 16/18, and therefore their engagement is of paramount importance. Parmar furthered this in noting that the conference only lasted for a day and a half: the Istanbul Process should be the time for hard policy and guidance development, rather than being treated as a talking shop.

Secondly, Smith noted that very few of the original diplomats engaged in the drafting of Resolution 16/18 were present, while Parmar commented that the Istanbul Process’ status appeared to have degenerated somewhat. When considered in the context of its time, the resolution was a dramatic rejection of an agenda that had been pursued for over a decade: its landmark significance must not be forgotten.

Finally, both Smith and Parmar noted that accusations of double standards continued to be levied by both the West and the OIC. The aforementioned irony of holding a conference on freedom of expression while Raif Badawi is arbitrarily imprisoned, facing cruel and inhumane punishment, was raised by a number of civil society actors, and quickly brushed aside by those managing the meetings. Since upholding Badawi’s sentence and facing renewed international outcry, the Kingdom of Saudi Arabia has released a statement that it ‘will not tolerate such outrageous, ridiculous interference in its sovereign justice system’. Furthermore, the explicit protection afforded to atheists and non-believers in General Comment 22 to Article 18 of the ICCPR (‘Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief’) has not gained traction with the majority of OIC states: references to minority groups continue to focus on theists. However, criticisms on the grounds of duplicity were equally levied towards European states, notably with regard to the unequal treatment of anti-Semitic and Islamophobic incidents. Members of the OIC also highlighted the persistence of blasphemy laws in Western countries: while many of these are dead-letter laws, they certainly harm the credibility and legitimacy of interventions that criticise state-sanctioned discrimination. Smith reinforced that there is no double standard when it comes to freedom of expression: there is one standard, and there are states across all regions and religious persuasions who fail to meet it.

So, where do we go from here? How can we take further steps towards realising the goals of Resolution 16/18, towards ameliorating the sectarian conflicts that continue to simmer and rage? What we can identify is a wealth of technical and normative guidance; the need for legal changes and a shift in attitudes; and a number of issues that inhere in the current treatment of the Istanbul Process. Thankfully, within these three broad categories lie the seeds of answers to each of them. Changes to legislation and attitudes can only be achieved with the employment of the instruments and guidelines that are available, and resolving the problems experienced in Jeddah will help create the space to do so. We do not need to develop new policies or guidelines, but instead need to build on and improve our application of those that already exist. While the debate over the bounds of freedom of expression will undoubtedly continue, the centralisation and increasing understanding of Resolution 16/18, the Rabat Plan and the Istanbul Process within the dialogue is an essential remedy to the potential resurgence of the defamation agenda.

It is worth noting, however, that these recommendations pertain to high level and legislative change. As members of an increasingly global society, we too have a role: to engage in inter-religious dialogue, to promote an environment of tolerance and respect, and to deliberately cast out stereotypes in favour of building the mutual understanding envisioned in Resolution 16/18.  As Marc Limon said, ‘the road to Istanbul is through Rabat’ – but you can take part in the journey.

For further information:

Andrew Smith @access2smith @article19un

Sejal Parmar @_SejalParmar