In March 2011, after years of divisive UN debates over calls to ban speech deemed religiously offensive, the international community found common ground around a consensus resolution on countering religious intolerance, discrimination, and violence. UN Human Rights Council Resolution 16/18, which has been reaffirmed annually, provides a concrete action plan of constructive measures. Under its rubric, states are committed to addressing religious bias without restricting free expression. This is done by emphasizing education, outreach, interfaith efforts, counter-speech, and the enforcement of laws against discrimination and violence. The past two years with this approach has yielded some benefits, but states must stay focused on the hard-won common ground in order to achieve real progress.Resolution 16/18 and its successors replaced the UN resolutions, sponsored for a decade by the Organization of Islamic Cooperation (OIC), on the so-called “defamation of religions.” Those flawed resolutions sought to undermine individual freedoms of religion and expression by establishing a global anti-blasphemy norm. The new resolutions, by contrast, properly focus on protecting individuals from discrimination or violence, instead of shielding religions from criticism; they protect the adherents of all religions or beliefs, instead of privileging one religion; and they do not call for legal restrictions on peaceful expression. Instead, the approach begun by Resolution 16/18 calls for speech to be criminalized only if it amounts to incitement to imminent violence, the same high threshold used by the U.S. First Amendment.
While the Resolution 16/18 approach, on paper, is a welcome improvement over the defamation resolutions, the consensus behind it is fragile. To be sure, the OIC as a group at the UN has continued to support resolutions in the 16/18 model, which is positive. The actual commitment of OIC member governments, however, is questionable. Many OIC countries still have and enforce domestic blasphemy laws that are inconsistent with Resolution 16/18, and some of their leaders continue to call publicly for international bans on the defamation of Islam. The Arab League reportedly is considering enacting a regional blasphemy law, which would be a major step in the wrong direction. Few OIC countries have even bothered to report on their implementation of the 16/18 action plan, as requested in the resolutions. Moreover, OIC Secretary General Ekmeleddin Ihsanoglu, the main force behind the OIC’s change and current adherence to the 16/18 approach, is finishing his term in January.
I saw the fragility of this agreement firsthand when I attended the first and third Istanbul Process meetings as an observer. The Istanbul Process—launched by the OIC Secretary General, the U.S. Secretary of State, and the EU High Representative for Foreign Affairs and Security Policy—is a series of international meetings dedicated to discussing the implementation of Resolution 16/18. The first meeting, organized by the United States, brought together officials from the U.S. Departments of Justice and Homeland Security with relevant officials from their counterpart ministries in 26 different countries. The discussions centered on practical ways to conduct outreach to religious minority communities and to enforce anti-discrimination and hate crimes laws while vigorously protecting free expression. These conversations led to further workshops on these issues in several countries.
The third meeting, by contrast, was organized by the OIC and held at the UN in Geneva. Unfortunately, it focused less on practical implementation and more on arguments over banning offensive speech as “incitement.” As explained here and here, however, advocacy of hatred that constitutes incitement to violence under international law means speech that intentionally urges listeners to commit violence against members of a certain group; it does not mean speech that offends members of a group and to which they react violently. Indeed, treating reaction as incitement would create a perverse incentive for individuals to act violently in order to suppress speech they do not like.
The fourth Istanbul Process meeting, focusing on interfaith dialogue, is being planned for early next year in Doha, and the next annual intolerance resolutions are expected in the General Assembly this fall and the Human Rights Council in the spring. Moving forward, the United States, EU countries, and other member states that support universal human rights must work to ensure that the recent Geneva Istanbul Process meeting was an exception, not the rule. Of course, they must continue to oppose any efforts to limit expression or redefine existing international incitement norms, but hopefully all parties involved in the Istanbul Process can agree that future meetings will focus on commonalities, not differences. No state that is serious about addressing religious hatred should want to return to the old, unproductive debates.
Resolution 16/18 and the Istanbul Process, if carried out properly, can provide a positive way forward on real problems that affect far too many people in far too many places around the world. These efforts, however, must focus on implementing the action plan agreed to in Resolution 16/18, not on restricting the fundamental freedoms of religion and expression.