Even more dangerous is the potential effect in states with little tradition of free speech and the rule of law, where the OIC position could legitimize repression of political and religious speech in the name of human rights. Russia has frequently used religious-hate-speech laws in this way by convicting artists deemed to have insulted the Orthodox Church and Christians. In OIC states the stakes are even higher. International legal legitimization of efforts to criminalize blasphemy and religious offense could have severe consequences for already vulnerable religious minorities, secularists, and those with heterodox religious beliefs considered “blasphemous” or “offensive” by governments monopolizing religious thought.
The U.S. should be lauded for standing firm on the need to counter intolerance and hatred through debate rather than censorship. However, failing to directly confront the OIC’s rival interpretation of R 16/18 is not a sustainable position if the U.S. wants to promote freedom of conscience, expression, and religion at the global level. The U.S. should explicitly state its disagreement with the OIC over the interpretation of R 16/18. In doing so, the U.S. could point to interpretations of the ICCPR by the UN Human Rights Committee (not to be confused with the Human Rights Council). The Committee has clarified that the covenant protects blasphemy and offers a higher level of protection of freedom of expression than that found in many European states.
Moreover, in any future sessions of the Istanbul Process, the U.S. should insist on a different focus. Currently the underlying premise of these discussions is that religious intolerance, hatred, and extremism are Western phenomena aimed primarily against Muslims. Yet legal discrimination against Muslims, such as the Swiss ban on building more minarets and the French ban on the burqa, are exceptions to the rule that Muslims are free to practice their faith in the U.S. and Europe. Moreover, the relatively few appalling acts of mosque burnings and violence against Muslims are rightly condemned and prosecuted in the U.S. as well as Europe.
These problems pale in comparison with the levels of religious intolerance, discrimination, and violence found in many OIC states. In Pakistan, Shia Muslims are being killed in the hundreds by Sunni extremists, with insufficient official reaction; Ahmadiya Muslims are legally discriminated against in the constitution; and Christians are disproportionately targeted by vague and nebulous blasphemy laws. In Egypt, human-rights organizations report that respect for basic human rights is worse under President Morsi than it was during Mubarak’s autocracy. The new Egyptian constitution fails to guarantee freedom of conscience and religion for many minorities.
The U.S. and the EU should insist that such issues be addressed and discussed as part of discussions with the OIC, and that the remedy for such intolerance, violence, and discrimination lies in respecting rather than limiting freedom of expression and religion. Papering over fundamental differences in an effort to buy peace with the OIC is no long-term strategy for promoting human rights around the world and protecting the hard-won freedoms enjoyed by citizens of liberal democracies and denied to those in autocracies.
— Jacob Mchangama is managing director of the Freedom Rights Project and director of legal affairs at the Danish think tank CEPOS.