or belief. The consequence, therefore, was that the Muslim world’s contention that criticism of religious belief leads to religious intolerance was contested by the West on the grounds that religions do not possess an “individual” personality and that intolerance in terms of human rights law can only apply to individuals and not to religions or ideologies. Another point of divergence was the Western argument that any restrictions on criticism of religious beliefs would amount to denial of the right of freedom of expression or speech.
This latent and academic controversy came to a lead in 1999 with growing incidents in the West of insults to Islam, the Holy Prophet (PBUH) and hatred towards Muslims, later termed as “Islamophobia”. Pakistan on behalf of the OIC, therefore, tabled a resolution in the Human Rights Commission (the predecessor of the Human Rights Council) on “Defamation of Religions” with a clear focus on defamation of Islam. At first these annual resolutions were adopted by consensus but after the events of September 11, 2001, when the OIC’s concerns over Islamophobia amplified, theWest started calling for a vote on these resolutions. Their argument to back out of the prior consensus was that a religion had no legal personality under international human rights law and that such resolutions amounted to denial of the right to freedom of expression.
Pakistan counter-argued on behalf of the Islamic world that several Western countries had laws against anti-Semitic hate speech and Holocaust denial which were not in defence of individual but collective rights apart from being contrary to the right to freedom of expression. We, therefore, demanded equal treatment for Islam and Muslims.
In a world of political duplicity and power politics, the merits of our arguments were less effective as instruments of persuasion. Consequently, from 2001 onwards the OIC started losing support for its resolution on defamation of religions to the extent that in March 2010, this annual resolution was adopted by a margin of only 3 votes in the Council. Even some small Muslim countries from Africa were pressurised by the West to abstain on this OIC resolution.
But even more important than this waning support for the OIC was the realisation that in order to prevent defamation and denigration of Islam as well as to protect Muslim minorities in the West from rising incidents of Islamophobia and discrimination, the Western countries had to be co-opted and made to take ownership of the process to combat intolerance based on religion.
At the same time, the West also realised that their combined might had reduced but not reversed the support that the OIC under Pakistan’s leadership could still muster to push through its resolutions in the Council. They, therefore, decided to seek a compromise with the Islamic world. The stage was thus set to search for a new consensual approach to address the concerns of the OIC.
Taking advantage of this opportunity, the then OIC secretary general, with the support of member states, put forward an 8 point Action Plan suggested by Pakistani diplomats during an address to the September 2010 session of the Council, which provided a practical framework for combating religious intolerance.
This carefully crafted Action Plan became the basis for Pakistan along with Turkey to negotiate with the US and the UK a delicately balanced draft resolution which was then submitted for approval by their representative groups. This required consummate diplomatic skills and tough bargaining not only to work out the text but also to convince their own group members to accept ownership of the draft text. This was not an easy task. There were several nay-sayers on both sides. Not everyone was convinced of the need to compromise. There were also those given to grand standing, even jealousy for not being among the prime players. Eventually, however, better sense prevailed on both sides. The end result was a tenuous but workable consensus resolution that has survived for 5 difficult years during which there have been several challenges involving acts of violence, hatred and intolerance on both sides.
The center-piece of this “16/18” process is the Action Plan which calls upon the states to “consider taking specific measures aimed at fostering a domestic environment of religious tolerance, respect and peace, including but not limited to a) encouraging the creation of collaborative networks to build mutual understanding, promoting dialogue and inspiring constructive action; b) creating an appropriate mechanism within the government to, inter alia, identify and address potential areas of tension between members of different religious communities; c) encouraging training of government official on effective outreach strategies; d) encouraging efforts of community leaders to discuss within their communities causes of discrimination and evolving strategies to counter them; e) speaking out against intolerance, including advocacy of religious hatred that constitutes incitement to discrimination hostility or violence; f) adopting measures to criminalise incitement to imminent violence based on religion; g) underscoring the need to combat denigration or negative religious stereotyping and incitement to religious hatred; and h) recognising that the open, constructive and respectful debate of ideas, as well as interfaith and intercultural dialogue can play a positive role in combating religious hatred, incitement and violence.”
For OIC countries the most important requirement of the Action Plan was and is for states to “criminalise incitement to imminent violence” as has been done in several European states in the context of hate speech or actions relating to anti-Semitism and Holocaust denial. In this sense, Muslim countries are demanding equal and non-discriminatory treatment. Pakistan has therefore called for identifying a mutually agreed threshold between hate speech and free speech, which should be applied to all regions and their adherents. So far progress towards this understanding has remained elusive but it is still work in progress.
The Western focus has been on implementing the easier parts of the Action Plan such as speaking out against intolerance, media and educational campaigns to promote dialogue and interfaith understanding. While this is being done in some Western countries, the instances of hate speech that promote Islamophobia are more toxic, at times with violent reactions such as the recent attack on Charlie Hebdo magazine in Paris.
Soon after the adoption of the first consensual 16/18 resolution in March 2011, the OIC Secretary-General convened a high level meeting in Istanbul which was attended by the US Secretary of State Hillary Clinton, the EU High Representative for Foreign Affairs & Security Policy Catherine Asthon and Turkish Foreign Minister Ahmet Davutoglu and other senior officials from OIC and EU countries. This led to the “Istanbul Process”, a substantive manifestation of the shared commitment to ensure concrete follow up to implement the 16/18 Action Plan. The first in the series of meeting in pursuance of the Istanbul Process was held in Washington DC in December 2011, followed by a meeting in London in 2012.
The next meeting in June 2013 was hosted by the OIC in Geneva in which Pakistan forcefully stressed the Islamic world’s priorities and preferred focus. We stated that the lynchpin of the delicate consensus achieved in resolution 16/18 was Operative Paragraph 5(f), “adopting measures to criminalize incitement to imminent violence based on religion or belief” and that the key issue to be addressed here is the identification of the threshold between freedom of expression and incitement to hatred and violence. While recognising that the standards of what constitute “incitement to violence”, is different in different countries and legal systems, but we still believe that if we want to address the problem of religious intolerance, and related extremism and violence, we cannot avoid addressing this question head on. Pakistan also clarified in the context of the right to freedom of expression that it is not an absolute right even under International Law since articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR) clearly establishes that the right of freedom of expression has limitations and cannot be abused.
The 2014 Istanbul Process meeting in Qatar did not register any progress on the issue.
This year, the OIC secretary general has announced a meeting in June 2015 in Jeddah which, it is hoped, would prove to be more substantive in addressing the remaining challenges of implementation of this Action Plan. This objective of practical implementation has been clearly accepted by consensus in the latest OIC sponsored resolution adopted in Geneva on 27 March 2015.
The Office of the High Commissioner for Human Rights has also contributed to the ongoing efforts for implementation, especially in the context of identifying the threshold between free speech and incitement to violence. In a series of meetings among legal and human rights experts that culminated in Rabat, Morocco, in 2012, a set of criterion were adopted to guide member states to address the problem of incitement while upholding freedom of expression. Their recommendations involve the Rabat Plan of Action which advances a six-part test for use by prosecutors and judiciary for identifying the most serious forms of incitement that may warrant sanctions. The six considerations are: 1) the social and political context; 2) the stature of the speaker for example his or her status and influence; 3) the intent of a speech or act, as opposed to mere negligence; 4) its content or form, for example style or degree of provocation; 5) the extent of the speech, for example its public nature and the size of its audience; and 6) the likelihood and imminence of actually causing harm.
While a useful tool to guide state behavior, the Rabat recommendations fall short of the OIC objectives. But it is a step forward in the divisive debate on this issue. Since the Western countries have now taken ownership of the Rabat proposals, it is expected that a way forward can be found to bridge the positions of the OIC and the West.
In Pakistan’s estimation the achievements of the last five years have been significant and unprecedented towards addressing Islamophobia and intolerance and discrimination based on religion. But we are also realistic about the challenges ahead. The first is the increasing instances of religious intolerance and discrimination often leading to violent reactions worldwide. Muslims minorities are being alienated and marginalised in Western countries while incidents of insults, denigration and stigmatisation of Muslims and Islam are rising. Economic decline and political opportunism by western right wing politicians who are spreading Islamophobia, are also contributing to this combustible environment.
Meanwhile, in our own Muslim societies, the rise of extremist forces that are targeting religious minorities on the basis of religion, weakens the credibility and, therefore, the ability of OIC countries to respond effectively to the growing dangers of denigration of Islam, Islamophobia and protection of Muslim minorities.
It is against this backdrop that Pakistan, as the Coordinator of the OIC on Human Rights issues, faces the daunting task of maintaining consensus on the 16/18 process as the most viable platform to protect the human rights of Muslims worldwide while also moving in a consensual manner towards its effective implementation. While those elements of the 16/18 Action Plan relating to promotion of dialogue and understanding as well as speaking out against discrimination and intolerance based on religion are relatively non-controversial and easier to achieve, the most daunting challenge is to criminalise incitement to imminent violence while respecting freedom of expression. The fundamental problem remains the clash between Muslims and the West on the treatment of religious belief: for Muslims insult of any religion or reverend personality is unacceptable whereas for Western societies this is permissible as freedom of expression. Therefore, the challenge is to reconcile the inherent conflict in these two mutually incompatible world views. To do this will test the limits of Pakistan’s diplomatic skills and resourcefulness.
We sincerely believe that given goodwill and commitment on all sides, a way forward can be found. Our first step has been to examine the basis in human rights law on the freedom of expression which are 2 articles, 19 and 20, of the ICCPR. These articles clearly state that the right of freedom of expression is not absolute or without limits. It maintains that in case freedom of expression poses a security threat or leads to incitement to violence, then states can enforce limits to this right. From our perspective, instances of so-called free speech in the West have already created security threats as well as incitement to violence - against Muslims as well as by Muslims (as in the Charlie Hebdo case). There is also the case that freedom of expression can infringe on the freedom of religion through intimidation, threats and verbal abuse which amounts to incitement of violence.
Moreover, as we have pointed out on several occasions, a number of European states already have laws that criminalise hate speech such as anti-Semitism and Holocaust denial. The Berlin Declaration of the Organisation for Security and Cooperation in Europe (OSCE) of 2004 also calls upon Western states to enact legislation against anti-Semitism while the Council of Europe, even more importantly, requires that Western states institute legislation against racism and racial discrimination based on, among other factors, religion. In the US, as well the limits of free speech have been identified by the judiciary in the Brandenburg versus Ohio case.
These facts demonstrate that there are several avenues that must continue to be pursued for the effective and comprehensive implementation of resolution 16/18. One strongest argument is that there should be no discrimination or double standards and therefore people of all faiths must be treated equally. The ultimate goal is to evolve a legal framework on the basis of consensus that would protect the rights of Muslims as well as people of other faiths on a non-discriminatory basis. It is now upto Pakistan’s diplomacy to continue to lead the way to this end.
The writer is Pakistan’s Permanent Representative to the European Office of the UN in Geneva.
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