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Defamation of religion: rumors of its death are greatly exaggerated.

ABSTRACT

This Article explores the recent decisions by the United Nations ("UN") Human Rights Council and General Assembly to adopt consensus resolutions aimed at "combating intolerance, negative stereotyping and stigmatization of and discrimination, incitement to violence and violence against, persons based on religion or belief" These resolutions represent an effort to move past a decade's worth of contentious roll call votes in favor of prohibiting defamation of religion within the international human rights framework. Although labeled "historic" resolutions, this Article argues that the UN's new compromise approach endorsed in 2011--and motivated in part by the desire to end years of acrimonious debate over the acceptability of shielding religious beliefs from insult and criticism--is problematic because it risks being exploited to sanction the continued prohibition on defamation of religion and perpetuation of ensuing human rights violations on the ground.

After briefly considering the history of defamation of religion at the UN and the strategies employed by its principal proponent, the Organization of Islamic Cooperation ("OIC"), this Article turns to an assessment of the UN Human Rights Council's 2011 consensus Resolution 16/18. In light of the resolution's objectives, this Article explores the viability of the new international consensus around "combatting intolerance" and tests to what extent, if any, the concept of defamation of religion may be waning in practice. To this end, this Article weighs statements, resolutions, and other undertakings of the OIC and its member states with a particular emphasis on activities that follow the adoption of Resolution 16/18.

Based on this analysis, the Article concludes that the resolutions on combatting intolerance passed in 2011 represent a Clausewitzian moment for many governments, particularly among OIC member states. Essentially, support for the new international consensus on combatting intolerance represents a cynical and strategic decision to continue the campaign to legitimate a ban on defamation of religion by other means. Accordingly, even if defamation of religion per se is on hiatus from the UN, absent additional measures--including a decisive repudiation of the concept's validity--further international efforts to implement measures for combatting intolerance risk enabling an alternative framework in which governments continue justifying, in the name of protecting religious belief domestic measures that punish the exercise of freedom of expression and freedom of thought, conscience, and religion or belief
CONTENTS

INTRODUCTION
I. QUO VADIS DEFAMATION OF RELIGION?
 A. Origins and Early History
 B. Defamation of Religion Creep: Early Efforts
 to Blend Defamation into Incitement
II. RESOLUTION 16/18: ENDING A DECADE OF
 "DIVISIVE DEBATE"?
 A. Resolution 16/18: Crafting a Consensus
 B. Consensus? Yes. End to Defamation? No
III. LIVING IN A POST-CONSENSUS WORLD: THE WEST
 DREAMS WHILE THE OIC SCHEMES
 A. The UN's Ad Hoc Committee on the
 Elaboration of Complementary Standards
 B. OIC Resolutions and Other Activities
 C. The Istanbul Process for Combating Intolerance and
 Discrimination Based on Religion or Belief:
 Anyone for Jenga?
IV. MOVING FORWARD
 A. Resolve to Categorically Invalidate Defamation
 of Religion
 B. Assertive Engagement on Constitutional and
 Legislative Reform
 C. Redouble Diplomacy: Identifying State Practices
 Inconsistent with Consensus Resolution 16/18 and the
 Ongoing Problem with Blasphemy Prosecutions
 D. Fight Intolerance at Home
CONCLUSION


INTRODUCTION

From 1999 through 2011, the United Nations ("UN") hosted an annual struggle between one group of states rallying to establish an international norm prohibiting defamation of religion and another group that was staunchly opposed to such a move. Over the course of twelve years, the debate moved from the defunct UN Human Rights Commission to the UN Human Rights Council ("UNHRC') and even spilled into the General Assembly ("UNGA") and other UN substructures. These UN bodies passed nearly twenty resolutions that, among other things, "[w]elcom[ed] ... the enactment or strengthening of domestic frameworks and legislation to prevent the defamation of religions," (1) "[u]nderscor[ed] the need to combat defamation of religions," (2) and purported to authorize limitations on the right to freedom of expression based on "respect for religions and beliefs." (3) In addition to resolutions, these UN bodies also tasked different Special Rapporteurs, the High Commissioner for Human Rights, and even the UN Secretary General with compiling a total of nearly thirty reports dedicated to defamation of religion. (4)

Admittedly, support for the international prohibition of defamation of religion had been dwindling in more recent years, to the point where the combination of abstaining states and states voting against the annual resolutions outnumbered those voting in their favor. (5) Nevertheless, both the UNHRC and UNGA continued to pass these resolutions successfully by a majority vote. (6) Thus, the gradual decline in support should not diminish the diplomatic feat represented by UNHRC Resolution 16/18, which was adopted by consensus in March 2011. (7) Notably, this resolution successfully expunged any mention of defamation of religion by the UN for the first time in over a decade. (8)

More impressively still, by sidestepping explicit rejection of the defamation-of-religion concept, the resolution's substitute language allowed the negotiating parties to extrapolate diametrically opposed messages from its content. Thus, on one side, the U.S. was able to claim an end to an acrimonious era responsible for creating a "false divide that pit[ted] religious sensitivities against freedom of expression." (9) At the same time, the Organization for Islamic Cooperation ("OIC") (10)--the principle backer of defamation of religion resolutions at the UN--was able to declare Resolution 16/18 nothing more than the "exploring [of an] alternative approach[]." (11) In this vein, the OIC continues to advance support for defamation of religion "on bloc" among its member states "in the true spirit of solidarity and joint action on matters of vital concern ...." (12) Placed in context, these diametrically opposed positions signal a continuing divide between the sides and raise questions concerning the viability of implementing any consensus resolution in a manner that will accord with existing international human rights law.

After briefly considering the tumultuous history of efforts to secure an international prohibition against defamation of religion at the UN, including strategies championed by its proponents, this Article assesses the UN Human Rights Council's 2011 consensus Resolution 16/18, as well as statements made before and immediately following its adoption. In light of the resolution's objectives, this Article moves on to explore several related developments to ascertain to what extent, if any, the concept of defamation of religion may be waning and whether the international consensus around "combatting intolerance" represents a viable alternative strategy moving forward. Among other things, this Article considers OIC statements and resolutions pertaining to defamation--particularly those issued following the adoption of consensus resolutions by the UNHRC and General Assembly, as well activities in other UN bodies, and other related developments on the ground in OIC member states. This analysis demonstrates that the shift to "combatting intolerance" within the UN has suppressed but not resolved a fundamental and ongoing dispute between the "West" and certain other states over the nature of international human rights protections and the value of universalism. By shifting this debate to an ambiguous and under-theorized area of law in the name of pursuing and validating an "international consensus," (13) these new resolutions risk creating an opportunity for certain states to prosecute perceived affronts to religious belief with renewed vigor under the imprimatur of international law. The likelihood of such a scenario is only heightened by the fact that the OIC the world's largest international organization after the UN--continues to actively identify and endorse defamation of religion as a lawful and recognized international norm inexorably and legitimately linked to the goal of combating intolerance.

Faced with this reality, this Article concludes that the resolutions on combatting intolerance represent a Clausewitzian moment for many governments, particularly among OIC member states. In this respect, support for the new international consensus on combatting intolerance represents merely a cynical and strategic decision to continue the campaign to legitimize a ban on defamation of religion by other means. While defamation of religion per se might be on hiatus from the UN, absent additional clarification--including a decisive repudiation of the concept's validity--further international efforts directed at combatting intolerance risk enabling an alternative framework for governments to continue justifying domestic measures that punish the exercise of freedom of expression and freedom of religion or belief in the name of protecting one or more select religious beliefs.

I. QUO VADIS DEFAMATION OF RELIGION?

A. Origins and Early History

For the OIC, the need to prohibit defamation of religion or, more accurately, defamation of Islam--has grown into an overriding raison d'etre. In the face of initial controversies at the UN predating the first defamation of religion resolution issued in 1999, (14) OIC member states proclaimed that the motivation for insulting Islam stemmed only from the desire "to generate conflict with Islamic peoples" (15) and flatly asserted that "the right to freedom of thought, opinion and expression could in no case justify blasphemy." (16)

In 1999, the OIC moved to have the UN Commission on Human Rights ("UNCHR") explicitly validate this perspective. Representing the OIC, Pakistan called for the adoption of a resolution that urged states "to take all necessary measures to combat hatred, discrimination, intolerance and acts of violence, intimidation and coercion" directed at the religion of Islam. (17) Germany's representative criticized this approach "since it referred exclusively to the negative stereotyping of Islam, whereas other religions had been and continued to be subjected to various forms of discrimination, intolerance and even persecution." (18) Germany further reported that it "had unfortunately been impossible to find common ground" in initial negotiations because OIC member states "had persisted in making the draft resolution exclusive in nature and had found it necessary to submit sub-amendments to amendments designed to correct the balance of the text." (19)

Ultimately, further negotiation led to the UNCHR's consensus approval of a resolution entitled "Defamation of religions." (20) At the time, Pakistan hailed the OIC member states' "considerable flexibility" in agreeing to a compromise resolution. (21) Germany, on behalf of the European Union ("EU"), stressed that the "last-minute agreement reached 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," adding that "they did not attach any legal meaning to the term 'defamation' as used in the title." (22) Despite this view, the consensus resolution triggered the first mandated UN reporting on the topic and positioned the UNCHR "to remain seized of the matter" moving forward. (23)

The term "seized of the matter" captures literally the UN's preoccupation with defamation of religion over the decade that followed. In addition, to attention morphing beyond the relatively provincial domain of the UN's specialized human rights body and into the larger (and arguably more important) General Assembly, defamation of religion received frequent references in subsequent annual resolutions to the point where the term was being referenced between ten to fifteen times per resolution. (24) Notably, this expansion was accompanied by a shift away from invoking defamation in the relatively harmless context of preambulary front matter to including it in the more significant operative paragraphs of a given resolution. (25)

This change was not accidental. Rather, it coincided with the OIC's stated desire to secure "[o]perative provisions prohibiting blasphemy ... in the text of [defamation resolutions]." (26) Moreover, it is in part because of this subtle yet dramatic shift that the OIC felt sufficiently empowered by 2009 to declare that a norm prohibiting defamation of religion had:
 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 stand alone concept with international
 legitimacy. It should not be made to stand out by creating the
 impression that it somehow encroaches upon the freedom of
 expression.

 ...

 [Accordingly, a]ny denial of these facts constitutes a
 contradiction of the established position of the international
 community, the international legitimacy and above all the
 main provisions of international law and international
 humanitarian law. (27)


To underscore its vow to secure an international prohibition on the defamation of religion at the UN, (28) the OIC regularly passed its own internal resolutions addressing defamation of Islam that called into question existing international norms related to non-discrimination and equality, freedom of expression, and freedom of religion or belief for every individual. (29) Beyond these annual resolutions, the OIC saw fit in its revised 2008 charter to establish "combat[ing] defamation of Islam" as one of the organization's primary objectives. (30) To that end, the OIC requires, as a precondition for obtaining observer status, that interested states provide a commitment to prohibit the defamation of Islam. (31)

Despite the OIC's consistent position, its promulgation of a norm proscribing defamation of Islam remains deeply flawed for several reasons. First, the application and enforcement of such a blasphemy prohibition typically is discriminatory in practice insofar as it protects only the government-sanctioned version of Islam. (32) Second, the OIC's requirement that this offense be criminalized is at odds with international efforts to limit penalties for conventional defamation offenses to civil liability only. Third, and possibly most problematic, the OIC's impetus for protecting Islam by manipulating the framework of international human rights upends the foundational understanding that rights belong to individuals rather than subjective concepts or beliefs. (33)

B. Defamation of Religion Creep: Early Efforts to Blend Defamation into Incitement

The magnitude of the flaws associated with defamation of religion virtually assured the decade of clashes at the UN. Indeed, these flaws may also help explain the OIC's attempt to legitimize the end goal of protecting Islam against criticism or insult by other means. For example, alongside its diplomatic effort to secure an annual defamation of religion resolution, the OIC embarked upon an increasingly contrived campaign to equate criticism of Islam with incitement to religious hatred. This "alternative" approach--embodied in the OIC's position within the UNHRC's Ad Hoc Committee on the Elaboration of Complementary Standards to the International Covenant on the Elimination of All Forms of Racial Discrimination ("Ad Hoe Committee") (34)--represents nothing more than an effort to "reclassify" defamation of religion within the legal framework of incitement to make it more palatable to states that have either abstained from or voted against the resolutions on defamation. (35)

The decision to create the Ad Hoc Committee is particularly remarkable given that similar earlier efforts failed to demonstrate the need for either a convention or additional protocol to the CERD as a means of "gap filling" related to incitement to religious hatred. For example, experts appointed by the UNHRC to address the content and scope of substantive gaps in existing international instruments to combat racism, racial discrimination, xenophobia, and related intolerance concluded "that religious intolerance combined with racial and xenophobic prejudices is adequately covered under international human rights instruments." (36) The experts concluded that the gap was not in the international instruments themselves, but only in their application, which the UN treaty bodies could remedy by issuing guidance "as to the interpretative scope ... [and] threshold of application ...." (37) Reinforcing this conclusion, the 2007 Study of the Committee on the Elimination of Racial Discrimination made no mention whatsoever of measures to prevent defamation of religion or incitement to religious hatred. (38)

As part of its lobbying efforts within the Ad Hoc Committee, the OIC has sought to blur the critical distinction between defamation of religion and incitement by proposing the following:
 [The adoption of] some sort of additional protocol or
 universal declaration for codifying freedom of expression in
 the context of human responsibilities. It may be called an
 additional protocol or universal declaration on "freedom of
 expression and human responsibilities" ... a comprehensive
 framework is needed for analyzing national laws as well as
 understanding their provisions. This could then be compiled
 in a single universal document as guidelines for legislation--aimed
 at countering "defamation of or incitement to religious
 hatred and violence." (39)


To further obfuscate the distinction between defamation and incitement, the OIC has continued to advocate that the Ad Hoc Committee endorse prohibitions on "deliberate and premeditated insults and ridiculing," "malicious and insulting attacks," and "ridiculing and insulting interpretation" of Islam (40) backed by sweeping criminal sanctions. Supporting this position, the OIC's voting allies within the Africa Group (which itself includes OIC member states) have argued that the "scourges" of "'Islamophobia,' 'Anti-Semitism,' 'Christianophobia' and 'ideological racism'" should "be criminalized in all their manifestations, and made punishable offences in accordance with international human rights law." (41) Under the theme "[a]dvocacy and incitement to racial, ethnic, national and religious hatred," the Africa Group demanded the Ad Hoc Committee endorse criminal punishment for those perpetrating, "instigating, aiding or abetting" the following actions:

(a)Public insults and defamation ... against a person or group of persons on the grounds of their ... religion ...;

(b) The public expression of prejudice that has the purpose or effect of denigrating a group of persons on the basis of the above-mentioned grounds;

(c) The public dissemination or distribution, or the production of written, audio or visual or other material containing manifestations of racism and racial discrimination ... [including defamation of religion]. (42)

Similarly, addressing the theme of "[d]iscrimination based on religion or belief" within the Ad Hoc Committee, the OIC called for, inter alia, criminal liability for those "who commit, instigate, or aid and abet ... directly or indirectly" the following:

(d) ... public insults and defamation threats against a person or a grouping of persons on the grounds of their ... religion ...; [and]

(e) ... publication of material that negatively stereotypes, insults, or uses offensive language on matters regarded by followers of any religion or belief as sacred or inherent to their dignity as human beings, with the aim of protecting their fundamental human rights. (43)

Nowhere in the OIC's submissions testing the boundaries of advocacy and incitement to racial, ethnic, national and religious hatred does the organization stipulate or explore the need for normative standards that would balance protection against "defamation" with the right to freedom of expression and freedom of religion or belief. In this context, the OIC fails to acknowledge or address standards that would relate to evidence of actual defamation, the requirement of intent, ascertaining the connection between perceived insult and actual incitement, or the principle of proportionality.

Also missing is any recognition that Article 20(2) of the International Covenant on Civil and Political Rights ("ICCPR") is intended to target only the most extreme purposeful advocacy of incitement to imminent forms of discrimination, hostility, and violence. (44) This high threshold prompted the UN Special Rapporteur on freedom of religion or belief to conclude that "expressions should only be prohibited under Article 20 if they constitute incitement to imminent acts of violence or discrimination against a specific individual or group." (45) The Special Rapporteur further cautioned:
 against confusion between a racist statement and an act of
 defamation of religion. The elements that constitute a racist
 statement are not the same as those that constitute a statement
 defaming a religion. To this extent, the legal measures, and in
 particular the criminal measures, adopted by national legal
 systems to fight racism may not necessarily be applicable to
 defamation of religion. (46)


Against these findings, the OIC's demand for wide-ranging mandatory criminal liability for defamation-based offenses in the context of incitement to religious hatred neglects the need for a fact specific and contextual inquiry into such prosecutions and, moreover, is woefully out of touch with existing international norms. The blunt conclusion issued jointly nearly a decade ago by the UN and Organization of American States ("OAS") special rapporteurs on freedom of expression together with the Organization for Security and Co-operation in Europe ("OSCE") Representative on Freedom of the Media is also worth recalling:
 Criminal defamation laws ... are unnecessary to protect
 reputations. The threat of criminal sanctions[,] imprisonment
 and prohibitive fines ... exerts a significant chilling effect on
 freedom of expression which cannot be justified. Criminal
 defamation laws are frequently abused, being used in cases
 which do not involve the public interest and as a first, rather
 than last resort. Criminal defamation laws should be
 abolished and replaced with appropriate civil defamation
 laws. (47)


The UN Human Rights Committee has consistently reaffirmed this viewpoint, calling on states to decriminalize conventional defamation laws and to cap the amount of possible damages awarded in civil lawsuits. (48)

Allowing the OIC and others to conflate defamation of religion with incitement to religious hostility is problematic for two related reasons. First, under the conflated definition, states can use an otherwise legitimate international norm to prosecute insults or criticism directed at religious beliefs simply by applying a relaxed interpretation to terms such as "advocacy," "incitement" and "hostility." Second, permitting a dilution of the stringent standards associated with ICCPR Article 20(2) may have the effect of cheapening the coin, which in turn may give rise to other states disregarding their obligation to prohibit genuine advocacy of hostility that actually constitutes incitement to imminent violence and leaves more immediately threatening acts unchecked.

The need to more clearly delineate and preserve this bright line distinction is even more pressing due to the nature of the compromise struck in Resolution 16/18 and specifically the failure to authoritatively repudiate the concept of defamation of religion. By agreeing to shift the debate into a decidedly less confrontational space made possible by vague terms open to subjective interpretation, the United States and others may have complicated the task of identifying and effectively confronting limitations on free expression and freedom of religion or belief motivated by the desire to curb perceived criticism or insult of religious beliefs. Indeed, while achieving consensus may be laudable, moving into this mostly untested gray zone seems particularly ill-advised given the OIC's ongoing effort to graft defamation of religion onto the framework of incitement, even at the expense of delegitimizing existing international law.

II. RESOLUTION 16/18: ENDING A DECADE OF "DIVISIVE DEBATE"?

A. Resolution 16/18." Crafting a Consensus

On its surface, 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" (49) represents a turning point insofar as it breaks the longstanding UNHRC practice of endorsing an annual resolution explicitly decrying defamation of religions. The resolution also ends a lengthy paper trail of mandated annual reporting dedicated to defamation of religion produced by various UN bodies. In place of this, the UNHRC, acting by consensus, agreed to condemn "any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence," while recognizing that "interfaith and intercultural dialogue ... can be among the best protections against religious intolerance and can play a positive role in strengthening democracy and combating religious hatred." (50)

To this end, the resolution sets out a number of concrete suggestions intended "to foster a domestic environment of religious tolerance, peace and respect" (51) and to "promot[e] the ability of members of all religious communities to manifest their religion, and to contribute openly and on an equal footing to society." (52) For example, the UNHRC calls on states to "[s]peak[] out against intolerance, including advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence." (53) The resolution also urges states to adopt, in accord with ICCPR Article 20(2), "measures to criminalize incitement to imminent violence based on religion or belief." (54) Lastly, the resolution serves albeit unofficially--as the departure point for what has come to be known as the "Istanbul Process," which is a series of meetings intended to "spur implementation of the specific actions called for in Resolution 16/18" (55) by, among other things, "sharing best practices." (56)

B. Consensus? Yes. End to Defamation? No.

Based on the remarks of those states that continue to tout the legitimacy of prohibiting defamation of religion, it is evident that the putative norm is still very much alive and well, despite the new consensus approach intended to supplant it. For example, addressing the high level segment of the 16th Session of the UNHRC before it passed Resolution 16/18, OIC Secretary General Ekmeleddin Ihsanoglu reiterated his call for "establishing an Observatory at the Office of the High Commissioner to monitor acts of defamation of all religions." (57) Ihsanoglu lauded the OIC's flexibility in negotiations, expressing an expectation for "some reciprocity," and asserted that the "perception that supporting [defamation of religion] would throttle one's right to freedom [of] expression is only a myth." (58)

Several weeks later, the ambassador from Pakistan, Zamir Akram, articulated the OIC's view more bluntly in his introductory remarks immediately preceding UNHRC adoption of the resolution:
 This draft resolution addresses a number of issues over which
 the OIC has been expressing concern over the years. Having
 said that, I want to state categorically that this resolution does
 not replace the OIC's earlier resolutions on combatting
 defamation of religions which were adopted by the Human
 Rights Council and continue to remain valid. (59)


Reinforcing this position, the Saudi Arabian ambassador in his explanation before the vote observed that:
 This text contains many positive points .... [However,] this
 text ... is not replacing the other existing text which also
 criminalizes attack on religion. This text still remains valid
 ... [and events like the burning of the Koran in the United
 States] calls on us all to redouble our efforts against this
 phenomenon. (60)


Despite these pointed statements, U.S. Ambassador Eileen Chamberlain Donahoe chose not to refute the assertion that an international norm prohibiting defamation of religion remained valid. (61) Instead, she left it to the representative from Hungary to politely demur: "insofar as they are directed at the EU we do not agree with the ... allegations made by the distinguished Ambassador of Pakistan in ... his introduction to this resolution." (62)

Following its adoption by consensus, numerous officials and nongovernmental organizations ("NGOs") lined up to applaud Resolution 16/18 as a death knell for defamation of religion. The United States Commission on International Religious Freedom ("USCIRF"), long critical of the OIC's effort to install a norm prohibiting defamation of religion, offered an observation seemingly disconnected from reality: "Tragically, it took the assassinations of two prominent Pakistani officials who opposed that country's draconian blasphemy laws ... to convince the OIC that the annual defamation of religions resolutions embolden extremists rather than bolster religious harmony." (63) Likewise, Human Rights Watch ventured that the shift to combating intolerance "implicitly rejects the 'defamation of religions' concept." (64)

Oddly, neither of these statements sought to account for the multiple reassertions of the norm's validity expressed during the Council session. Perhaps more cautiously, the UN's Special Rapporteurs on Freedom of Religion or Belief, on Freedom of Opinion and Expression, and on Contemporary Forms of Racism jointly declared the adoption of Resolution 16/18 a "positive development." (65) During an Office of the High Commissioner for Human Rights ("OHCHR")-sponsored expert workshop in Nairobi, Kenya, they expressed their collective appreciation that "the [UNHRC] has after years of debate--ultimately found a way to unanimously address [the] worrying phenomena [of intolerance, negative stereotyping, discrimination, and incitement] without referring to concepts or notions that would undermine international human rights law." (66) At the same time, however, they "emphasize[d] the principle that individuals rather than religions per se are the rights-holders." (67) These statements were reiterated by the special rapporteurs in their joint submissions to the follow up OHCHR workshops held in Bangkok, Thailand (68) and Santiago, Chile during 2011. (69)

III. LIVING IN A POST-CONSENSUS WORLD: THE WEST DREAMS WHILE THE OIC SCHEMES

Despite the general fanfare and congratulatory accolades surrounding the consensus vote on Resolution 16/18, neither the content of the resolution nor the remarks of state representatives at the UNHRC offer anything that decisively invalidates or discredits the recognition of an international prohibition on defamation of religion. In fact, as the following sections indicate, despite the omission of the term "defamation of religion" from UN resolutions in 2011, the OIC continues to support this norm actively as a fait accompli. This consistent position denigrates the spirit of consensus in which the resolutions combatting intolerance ostensibly were passed. More disturbingly, this behavior may ultimately undermine the very objectives to which Resolution 16/18 aspires by condoning the continued prosecution of blasphemy-based offenses and potentially discrediting otherwise legitimate efforts to combat discrimination and incitement.

A. The UN's Ad Hoc Committee on the Elaboration of Complementary Standards

Following the UNHRC's 2006 decision, the Ad Hoc Committee on the Elaboration of Complementary Standards embarked on a series of working sessions "to draw up the requisite legal instruments" (70) that would address existing gaps in the CERD and formulate new normative standards aimed at combating incitement to racial and religious hatred. (71) As noted above, the OIC attempted to use this venue to blur the line between defamation and incitement and press for a new treaty prohibiting insults and ridicule of religion. (72) In part because of opposition to this approach, the meetings held from 2008 through 2010 were characterized by an overriding sense of discord and contention so profound that the position of Chairperson-Rapporteur remained vacant for an extended period. (73) But what of the Ad Hoc Committee's session following the passage of Resolution 16/18, which occurred in a new atmosphere of consensus that put aside the previous "false divide that pits religious sensitivities against freedom of expression"? (74) The second part of the Ad Hoc Committee's third session, which convened April 11-21, 2011, is instructive in this regard.

After an abortive start to the third session and a delay of nearly six months, member states reconvened and agreed that Jerry Matthews Matjila, Permanent Representative of South Africa, would serve as chairperson-rapporteur for the committee. (75) In turn, Matjila proposed four initial topics for discussion intended to reflect "burning issues of the times" and "key topics and concerns of participants": (76) (1) "xenophobia"; (2) "incitement to racial, ethnic and religious hatred"; (3) "racial and xenophobic acts committed through information and communication technologies"; and (4) "racial, ethnic and religious profiling." (77) Matjila suggested that the committee address incitement to racial, ethnic and religious hatred specifically because it "had been the focus of attention during recent sessions of the Human Rights Council, [and] ... the Council's last session had adopted a resolution by consensus and that he wished to build thereon." (78) The United States expressed the view that any discussion in the Ad Hoc Committee should reflect the new consensus language contained in Resolution 16/18, namely "combating advocacy of national, ethnic, religious and racial hatred that constitutes incitement to discrimination, hostility or violence." (79) But other participants disagreed, leaving the formal meetings bogged without consensus over which issues the committee should in fact address.

In an attempt to overcome the impasse, the Ad Hoc Committee adjourned and shifted into "informal consultations" facilitated by Mothusi Bruce Rabasha Palai, the permanent representative of Botswana. (80) Following these efforts, Palai reported back that "[i]n view of the need to keep the participants working together, topic 2 'Advocacy and incitement to racial, ethnic, national and religious hatred' had been dropped." (81) According to Palai's report, the EU "seemed to have major difficulty with the wording of the topic's title," (82) whereas the United States reiterated its concern as being "more one of characterization than of reality or substance," and "suggested that the Ad Hoc Committee move forward on the basis of [the UNHRC] consensus resolution rather than revert to previous terminology and focus." (83)

Ultimately, the Ad Hoc Committee could only agree to move forward on discussions relating to the topics of xenophobia and the "[e]stablishment, designation or maintaining of national mechanisms with competences to protect against and prevent all forms and manifestations of racism, racial discrimination, xenophobia and related intolerance." (84) These discussions reveal a continuing overarching procedural disagreement over whether perceived gaps in normative standards require new treaties or protocols or can be addressed within existing frameworks through more effective implementation. (85) Coupled with the obvious ongoing substantive tensions alluded to above, these factors together may help explain additional delays in the Ad Hoc Committee's scheduled meetings and anticipated work product. (86) The chairperson's plea for "other regions to consider if they were now ready to take on the responsibility of serving as Chairperson of the Ad Hoc Committee" may also have a role in the delay. (87)

The UNHRC's review of Ad Hoc Committee's progress provides additional insight into the status of the "consensus" reached in Resolution 16/18. During a general debate addressing the Ad Hoc Committee's third report held in September 2011, (88) Pakistan, on behalf of the OIC, explained that Resolution 16/18 was
 an attempt by the OIC to build consensus on an issue of vital
 importance ... by identifying ways and means to deal with the
 growing problem of religious intolerance and discrimination, and
 incitement to hatred and violence based on religion. However, as
 projected by some, it is important to emphasize that resolution
 16/18 did not replace the OIC's earlier resolutions on combating
 defamation of religions which were adopted by the Human Rights
 Council and continue to remain valid. (89)


From the OIC's perspective, then, it would be perfectly legitimate for the Ad Hoc Committee to consider and propose a new treaty or protocol addressing defamation of religion in the context of incitement to religious hatred. In support of this understanding, the representative from Kuwait reasoned that the "constitution of the state of Kuwait is in conformity with the rules and regulations of human rights conventions" and thus, "[l]egally, it is not allowed to express any opinion that includes scorn or that degrades or demeans any faith or religion ... be it in challenging the beliefs or the teachings and traditions. This applies [to] all religions without naming one religion." (90) Likewise, the Moroccan delegate stressed the importance of the Ad Hoc Committee's work and associated its own position with that of the OIC and Africa Group. (91)

B. OIC Resolutions and Other Activities

Despite the ostensible existence of a new consensus view on incitement at the UN, delegates to the UNHRC cannot be faulted for insisting on the continued legitimacy of defamation of religion within in the Council and elsewhere. In reality, these government officials are merely restating another consensus--yet contradictory--view maintained by the OIC that continues to "call upon the international community to take effective measures to combat the defamation of religions ...." (92) Indeed, the resolutions emerging from the OIC's most recent Council of Foreign Ministers which followed months after the unanimous UNHRC endorsement of Resolution 16/18--plainly establish that securing a prohibition against defamation of religion remains one of the organization's overriding objectives, despite any "historic" (93) UN consensus relating to incitement.

For example, Resolution No. 34/38-POL On Combating Islamophobia and Eliminating Hatred and Prejudice Against Islam generally "[r]eaffirm[s] all OIC resolutions, which stress, inter alia, the need for effectively combating defamation of Islam and incitement to religious hatred, hostility, violence and discrimination against Islam and Muslims, as well as the growing trend of Islamophobia." (94) More specifically, the resolution affirms the OIC's commitment to securing a prohibition against defamation that applies exclusively to so-called "divine religions" (95) and categorically links defamation with blasphemy by condemning "all blasphemous acts against Islamic principles, symbols and sacred personalities" and "all abhorrent and irresponsible statements about Islam and its sacred personalities." (96)

The resolution's provisions notably omit any consideration of the deleterious impact of existing anti-blasphemy measures in OIC member states and elsewhere. (97) But perhaps most starkly at odds with the fanfare surrounding the UNHRC's consensus on combating incitement, the OIC resolution calls upon all states "to prevent any ... defamation of Islam by incorporating legal and administrative measures which render defamation illegal and punishable by law." (98) Drawing on the OIC's position in the UNHRC Ad Hoc Committee, the resolution calls for "a legally binding international instrument to prevent intolerance, discrimination, prejudice and hatred on the grounds of religion, and defamation of religions...." (99)

If the OIC's commitment to advancing a prohibition on defamation of religion still appears ambivalent or otherwise displaced by the consensus vote at the UNHRC, Resolution 34/38-POL cements the OIC's position by establishing an annual reporting requirement intended to cover "defamatory acts against Islam or its sacred personalities." (100) And it maintains the defamation issue as an item agenda for the 39th Session of the Council of Foreign Ministers. (101)

Similarly, Resolution 35/38-POL, expressly addressing "Combating Defamation of Religions" also reaffirms previous UN resolutions on defamation of religion, and
 [e]mphasiz[es] that the consistent pattern of safe passage of the
 resolution, by a majority vote beyond OIC membership, lends
 recognition and international legitimacy to the urgent need to
 combat defamation of religions. (102)


To undergird this position, the OIC elsewhere calls for "the nonuse of the universality of human rights as a pretext to interfere in the states' internal affairs and diminish their national sovereignty." (103) Together with this, the OIC also asserts that western states have a responsibility to "ensure full respect to Islam and all divine religions" and must reject the use of "freedom of expression or press as a pretext to defame religions." (104) Arguably, these assertions may reflect no more than rhetorical declarations. Resolution 35/38-POL, however, also mandates very practical steps for advancing efforts to secure a prohibition against defamation by, among other things, intensifying efforts to coordinate positions and broaden the support base in favor of defamation resolutions "including through ... possibilities of reciprocal arrangements with other groups and states." (105) The resolution also recommends specific activities be undertaken by the OIC Secretary General. (106)

This political and legal maneuvering in turn begs the question: How does the OIC reconcile its business-as-usual marching orders concerning an international prohibition on defamation of religion with the consensus mandate espoused by Resolution 16/18 and celebrated by government and NGO officials alike? To help answer this question, the OIC's 2011 resolutions provide two critical pieces of information. First, the organization offers no more than a passing acknowledgement of the so-called historic UNHRC resolution. And even then, the reference is couched in classically tepid diplomatic parlance that merely takes note of "the adoption by consensus of the HRC resolution 16/18." (107) But beyond this lukewarm endorsement, the OIC more tellingly "[u]rges all Member States to continue to support the [defamation of religion] resolution on bloc ... while exploring alternative approaches, including the one contained in the HRC resolution 16/18." (108) From this perspective, the resolution ostensibly responsible for putting an end to "divisive debate" at the UN is no more than a distraction, an alternative approach to securing the OIC's unaffected top priority an international prohibition against speech deemed critical or insulting of Islam, or at the very least, international validation for the continued prosecution of blasphemy offenses at home.

That this objective remains a "top priority" is confirmed not only in the text of the OIC resolution on combating defamation of religion, (109) but also in the organization's steadfast commitment to the subject even in the face of seemingly more urgent matters. For example, a survey of issues addressed at the OIC Annual Coordination Meeting held in September 2011, and illustrated in the below table, indicates that defamation of religion received more consideration than developments in Libya, Afghanistan, Syria, and Iraq combined. (110) In fact, the only issue that garnered more attention than defamation was the OIC's perennial concern with the Arab-Israeli/Israeli-Palestinian conflict--an issue inextricably linked to the organization's establishment in 1969. (111)

This ranking indicates that UNHRC Resolution 16/18 failed to persuade the OIC that defamation of religion needed to be shelved or abandoned. An EU-sponsored review of the UNHRC that predates adoption of Resolution 16/18 confirms that the OIC's agenda priorities remain unchanged, even in a "post-consensus" era. According to the report, "[a]lmost all of the OIC resolutions in regular sessions concern Israeli violations of human rights, or defamation of religions." (113)

In addition to illuminating the OIC's top priorities, the 2011 Final Communique is also instructive insofar as it confirms the OIC's framing of UNHRC Resolution 16/18 as merely a stepping-stone on the path to an international prohibition of defamation of religion. The Communique specifically lauds the OIC Groups in New York and Geneva for placing the "crucial" issue of "incitement to racial and religious hatred, in particular, its contemporary manifestation--i.e. the defamation of religions, at the top of the permanent agenda of the General Assembly and the HRC." (114) The statement then proceeds to: (1) "emphasize[] the need to develop, at the United Nations, including the Human Rights Council, a legally binding international instrument to promote respect for all religions"; (115) (2) "stress[] the need to prevent the abuse of freedom of expression and freedom of press for insulting Islam and other divine religions"; (116) and finally (3) urge Member States to implement OIC Resolution 41/37-POL, (117) which stated their commitment to vote as a bloc at the UN on OIC objectives, "including those that relate to combating Islamophobia [and] the defamation of religions...." (118)

The significance of both the OIC drive in favor of bloc voting and its impact on UN affairs is worth underscoring in the context of Resolution 16/18 and any future action on the questions of incitement and defamation. The EU's 2011 report on the UNHRC observes that "the Africa Group often seems to be working in conjunction with the OIC--and frequently OIC members will speak on behalf of the Africa Group. The OIC's concerns have thus been dominating the HRC's discussions and outcomes." (119) As an outgrowth of the pervasiveness of 'bloc politics' within the HRC, "moderate states in blocs opposing the EU often find it more attractive to go along with the OIC or the Africa Group or the NAM [Non Aligned Movement] than to resist the peer pressure and vote with the EU." (120) More distressingly, the pattern of response to this bloc voting has been colored by a "prevailing view ... that the EU should avoid 'losing' and therefore should not run ... resolutions that may not attract a consensus." (121) As a consequence, the report finds that EU ambitions in the UNHRC have been distinctly lowered. Rather than propose and pursue its own resolutions, (122) the EU approach is characterized by a shift away "quite considerably from its initial position" in favor of "'going for consensus.'" (123) Although this tactic may generate the appearance of unanimity within the Council, it does little to address the report's underlying conclusion that consensus-seeking behavior may ultimately harm "the cause of promoting and protecting human rights." (124) In this respect, Resolution 16/18 and its outgrowth is a case in point.

C. The Istanbul Process for Combating Intolerance and Discrimination Based on Religion or Belief Anyone for Jenga?

On the heels of the 38th session of the OIC's Council of Foreign Ministers, the OIC and United States co-hosted in Istanbul, Turkey, a high-level ministerial meeting intended to facilitate Resolution 16/18's implementation. The event, which gathered representatives from key states and international organizations, ended with a feeble joint statement "call[ing] upon all relevant stakeholders throughout the world to take seriously the call for action set forth in Resolution 16/18." (125) Secretary of State Hillary Clinton separately remarked:
 [T]ogether we have begun to overcome the false divide that
 pits religious sensitivities against freedom of expression, and
 we are pursuing a new approach based on concrete steps to
 fight intolerance wherever it occurs. Under [Resolution
 16/18], the international community is taking a strong stand
 for freedom of expression and worship, and against
 discrimination and violence based upon religion or belief. (126)


To further advance this new approach, the United States announced the "Istanbul Process," a series of expert level meetings intended to "operationalize[e] the text of HRC Resolution 16/18 ... [and] turn our energies to seeking real and effective measures against bigotry, discrimination, and violence on the basis of religion or belief in the ways spelled out in Resolution 16/18, which are fully consistent with freedom of expression." (127)

The first of these meetings was held behind closed doors over three days in late December 2011 in Washington DC. The meeting focused on the twin themes of identifying methods to better enforce laws that prohibit discrimination on the basis of religion or belief and exploring government strategies to engage religious minorities, including religious and cultural awareness training for government officials. (128) Although not in attendance, OIC Secretary General Ihsanoglu sent a message to the meeting participants, reiterating verbatim the remarks he offered several months earlier in Istanbul:
 The importance of the consensual adoption of [Resolution
 16/18] cannot be overemphasized ....

 ....

 Let me say that it reaffirmed OIC's credibility as well as
 demonstrated ability to seek, promote and build consensus on
 even the most sensitive of issues in contemporary
 international relations. It clearly demonstrated that, as a
 mature International Organization, OIC was not wedded to
 either a particular title or the content of a resolution. We just
 wanted to ensure that the actual matter of vital concern and
 interest to OIC Member states was addressed. (129)


It is difficult to reconcile this statement with those promulgated by OIC representatives and others in the lead up to voting on Resolution 16/18. Yet more egregiously, when contextualized against the flurry of OIC activity both internally and at the UN reasserting the organization's commitment to securing a prohibition against perceived criticism and insult of religious ideas and beliefs, the Secretary General's assertion that the OIC is not wed to content appears dubious at best.

For its part, the U.S. Department of State has announced its intention to compile "a comprehensive report based on discussions [from the December meetings] outlining a set of recommendations and best practices to be submitted to the [OHCHR] for public distribution." (130) But confronted with the OIC's seemingly contradictory positions, one must wonder what value such recommendations will have in developing a genuinely consensual vision for combating religious intolerance while upholding religious freedom and freedom of expression. Indeed, the quest for concrete implementation standards will likely prove to be a Jenga moment for Resolution 16/18. By failing to decisively invalidate the chimera of defamation of religion, the UN has allowed the OIC to advocate its continued legality, including by openly asserting that implementation of Resolution 16/18 is one possible "alternative approach" to achieving the end goal of shielding religious beliefs from criticism and insult. Against this backdrop, international negotiations aimed at identifying implementation tools and practices will likely be subject to significant pressure, particularly with respect to key terms enshrined in Resolution 16/18.

Although international law does provide some guidance, such as ICCPR Article 20, which suffers from underdeveloped consideration, the ongoing activity of the UNHRC Ad Hoc Committee and the OIC's unaltered position signal the persistence of radically divergent opinions. In this vein, discrepancies and nuances over parsing what constitutes incitement, advocacy, discrimination, hostility, religious hatred, denigration, negative religious stereotyping, and imminent violence may generate three possible outcomes: (1) promulgated international implementation standards that omit precise definitions for key terms but retain consensus support; (2) a complete public breakdown in negotiations or a contentious roll call vote on implementation standards where consensus over specific terms cannot be reached; or (3) the parties may opt in favor of death by committee, where consensus over specific terms cannot be reached, resulting in no public follow up by the UNHRC on implementation standards.

In the first scenario, national authorities are left to fill in the blanks, allowing for operationalization of Resolution 16/18 that facilitates subjective interpretation and measures that continue to protect select religious beliefs at the expense of freedom of expression and freedom of religion or belief. Here, the OIC will be quick to point to its consistent understanding that while "human rights are universal in nature," any consideration must "bear[] in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds." (131) In the second case, where negotiations suffer a public breakdown, the OIC's hand is similarly strengthened insofar as its member states are left free to invoke both consensus Resolution 16/18 and previous defamation of religion resolutions as valid bases for redoubling efforts intended to prohibit defamation of religion. A roll call vote on implementation standards likewise leaves Resolution 16/18 intact and, given the current makeup of the UNHRC, seems unlikely to endorse any norms that contradict OIC objectives. Under the third scenario, the parties may, in the spirit of consensus, "agree to disagree" and in turn opt to bury international implementation standards rather than spark another "divisive debate." That outcome would similarly empower national authorities to superimpose a subjective interpretation on Resolution 16/18, including a linkage between it and previous defamation of religion resolutions. This linkage, in turn, would ostensibly validate domestic measures limiting perceived criticism or insult of select religious beliefs as comporting with international law.
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Title Annotation:Introduction through III. Living in a Post-Consensus World: The West Dreams while the OIC Schemes, p. 347-378
Author:Blitt, Robert C.
Publication:Case Western Reserve Law Review
Date:Dec 22, 2011
Words:8155
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