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Statement by Ms. Kyung-wha Kang, United Nations Deputy High Commissioner for Human Rights, to the Expert workshop “The prohibition of incitement to national, racial or religious hatred

Rabat, Morocco, 4 October 2012

Mr. El Haiba,
Mr. Adama Dieng,
Your Excellency Mr. Samir Dilou, Minister of Human Rights and Transitional Justice of Tunisia,
Distinguished experts,
Ladies and gentlemen,

It is my honour to welcome you to this expert workshop on the prohibition of incitement to hatred as contained in international human rights law. I should like to sincerely thank the Inter-Ministerial Delegate on Human Rights of Morocco for the generous hospitality, through the able facilitation of Ambassador Hilale in Geneva.

Our meeting on this important topic today takes place at a particularly timely moment.

The world is facing great challenges arising from unprecedented levels of migration and globalisation in all spheres of life, rendering all our societies ever-more multicultural and heterogenous. Thanks to new communication technologies, messages and information can instantly reach vast audiences even in the most distant pockets of the world. The ongoing economic and financial crises, exposing the harsh inequalities and societal fault-lines that have deepened underneath decades of blind market-driven economic growth, have intensified the challenges.

Over the years, we have witnessed a number of incidents, including the recent uproar over the anti-Islam film originating in America, sending alarm bells about the level of hatred and cynicism that has permeated the minds of thoughtless or extremist elements in societies. Unfortunately a number of these incidents have led to violent reactions and deaths, including of UN personnel I might add. The challenges go beyond religious issues, and when religion lies at the core of the issues, they cannot be reduced to a dichotomy between Muslims and non-Muslims. As the Secretary-General has stated, “the fault line is not between Muslim and non-Muslim societies...but between a small number of extremists on different sides, with a vested interest in stirring hostility and conflict.” Indeed, over and above religious issues, the challenge of advocacy of hatred runs deeper and wider. We need only to recall the hate laden messages transmitted by Radio Milles Collines in Rwanda or by various media in the former Yugoslavia in the 1990s, or more recently examples of media outlets advocating attacks on persons for reason of their sexual orientation. Think about situations of post-electoral violence in Kenya in late 2007 which were spurred by hatred along ethnic lines, or incidents with neo-Nazis groups, or a head of state calling for the annihilation of another state. It is clear that hatred has many faces and we have seen them in all parts of the world.

Against this background, the fine line between freedom of expression and hate speech has come increasingly under focus. On the ground, this has created friction among diverse communities. It has also fuelled extensive national discussions, and has permeated debates at international human rights fora. To bring clarity to the debate enhance our understanding of the difference between free speech and hate speech, the High Commissioner took the initiative of organising a series of expert workshops, in the different regions of the world, in order to examine legislations, jurisprudence, and national policies on the related issues. The principle objective has been to delineate the realm of the prohibition of incitement to hatred in full respect of freedom of expression as protected by international human rights law. Key to attaining this objective is to realise that striking such a delicate balance between the prohibition of incitement to hatred and freedom of expression is not only necessary but also possible and certainly urgent.

Distinguished participants,

All human rights are universal, indivisible and interdependent and interrelated. Nowhere is this interdependence more obvious than in the discussion of freedom of expression and incitement to national, racial or religious hatred. The realization of the right to freedom of expression enables vibrant, multi-faceted public interest debate giving voice to different perspectives and viewpoints. Respect for freedom of expression is indeed crucial in ensuring democracy and sustainable human development, as well as in promoting international peace and security. In our era of deepening interaction, instantaneous communication, and mutual learning among peoples of different origins, the need for equality, social harmony, respect and tolerance is becoming ever more pressing and presents a mounting challenge to States.

In response to these challenges, many governments have reinforced existing laws and introduced new punitive measures. Indeed during the workshops, participants looked at the situation globally and found various examples of insufficient legislation, or new, vague and unclear provisions open to misuse. They have also observed uneven and ad hoc application of these laws compounded often by the absence of dedicated and properly equipped institutions to implement or adjudicate them. Experts have furthermore expressed concern over the negative consequences of the confluence of racial or ethnic identity and religious identity, about the negative impact of anti-blasphemy laws, and explored the problems of curbing freedom of information and the use of the internet, of harassment of journalists and human rights defenders. Throughout the discussions, examples were provided to demonstrate instances where members of minorities are persecuted, with a chilling effect on others, through the abuse of vague or counter-productive legislation, jurisprudence and policies. The paradox of no prosecution of “real” incitement cases, and persecution of minorities under the guise of domestic incitement laws seems to be wide-spread.

Let me state clearly that any action in response to incitement to hatred must not be applied in a normative vacuum or muddle. Furthermore, measures to provide protection against abuse, excessive state intervention, loose interpretation and selective application of the norms need to be implemented in accordance with international human rights standards. In addition to the International Covenant on Civil and Political Rights and the Convention on the Elimination of Racial Discrimination, the body of international law outlines several provisions which are relevant to freedom of expression and incitement to hatred. First of all, the Universal Declaration of Human Rights, which contains provisions on freedom of expression, has been interpreted to permit States’ action to prohibit hate speech or speech that is considered inflammatory or to incite hatred. The 1948 Genocide Convention explicitly includes “public incitement to commit genocide” among punishable acts, a provision which is also in both the Statutes of the International Criminal Tribunal for the Former Yugoslavia as well as that of the International Criminal Tribunal for Rwanda. Also the Rome Statute of the International Criminal Court provides for liability for anyone who “directly and publicly incites others to commit the crime” of genocide.

Distinguished participants,

Properly balancing freedom of expression and the prohibition of incitement to hatred is no simple task. Any limitations to this fundamental freedom must remain within strictly defined parameters. Article 19 (3) ICCPR lays down a clear test by which the legitimacy of such restrictions may be assessed, but further guidance are needed in the real world when weighing freedom of expression against the prohibition of incitement to hatred.

First, one should realise that the question of distinguishing those forms of expression that should be defined as incitement to hatred and thus prohibited is contextual and needs to take into account the individual circumstances of each case, such as local conditions, history, cultural and political tensions. An independent judiciary is therefore a vital component in the process of effectively adjudicating cases related to incitement to hatred. It should never be left for an angry crowd to judge.

Second, restrictions must be formulated in a way that makes clear that its sole purpose is to protect individuals holding specific beliefs or opinions, whether of a religious or other nature, from hostility, discrimination, or violence, rather than to protect belief systems, religions, or institutions as such from criticism. The right to freedom of expression implies that it should be possible to scrutinise, openly debate, and criticise – even in a manner many may consider harsh and excessive – belief systems, opinions, and institutions, including religious ones, as long as this does not advocate hatred which incites violence, hostility or discrimination against an individual or group of individuals.

Third, in relation to domestic sanctions, it is essential to make a careful distinction between (a) forms of expression that should constitute an offence under criminal law in accordance with international norms, (b) forms of expression that are not criminally punishable but may justify a civil suit and (c) forms of expression that do not give rise to neither criminal nor civil sanctions but still raise concerns in terms of tolerance, civility and respect for the convictions of others.

The international human rights expert mechanisms, and in particular the Committee on the Elimination of Racial Discrimination and the Human Rights Committee have a crucial role to play in guiding States to implement provisions of human rights law on incitement to hatred and hate speech thereby contributing to the progressive development of international law and to defusing political tensions on the basis of expert advice. They have not shied away from their responsibilities. The Human Rights Committee adopted in September 2011 its general comment 34 on article 19 ICCPR, and CERD has commenced its consideration of a general comment on racist hate speech (article 4 ICERD). The Human Rights Council, moreover, has also taken decisive action by adopting, in March 2011, a unanimous resolution (Res 16/18) that provides a comprehensive road map for a coordinated national and international effort to ensure that certain rights and freedoms are not misused to undermine other rights and freedoms. In addition, over the years, a number of human rights mechanisms have contributed to efforts to clarify where the lines should be drawn between free speech and hate speech.

Ladies and gentlemen,

In recent years, there have been challenges with regard to the dissemination of expressions which may have offended certain believers. This is not a new phenomenon and historically has concerned countries in all regions of the world as well as various religions and beliefs.

It is often purported that freedom of expression and freedom of religion are in a tense relationship or can even be contradictory. I wish to clearly state that instead they are mutually dependent and reinforcing. Freedom of religion cannot exist if freedom of expression is not respected. Likewise, freedom of expression is essential to creating an environment in which a constructive discussion about religious matters could be held. Indeed such discussion can be crucial for the rejuvenation and continued vibrancy of a religion. Indeed, free and critical evaluation in open debate is the soundest way to probe whether religious interpretations adhere to, or rather distort the original values that underpin religious belief. At the same time, the abusive and malicious portrayal of a religion is likely to create a threatening and discriminating context for the followers of that creed who, consequently, may become afraid to openly express their beliefs.

All religions, prophets and followers in the course of history have faced criticism, insults and denigration, but that's no justification for violence. The response to such insults is what illustrates the degree of our commitment to a set of fundamental and shared values. This underlines the crucial role to be played by political and religious leaders. Too often we have seen leaders using such incidents to rally electoral support, at times disturbingly issuing calls for violence and revenge, with utter disregard for the fact that their actions only serve to prolong the sequence of protests, violence and even killings. Indeed, all of us, and political and religious leaders in particular, should speak out firmly in the face of ignorance and bigotry, but the content of our message should enhance understanding, stimulate cross-cultural learning and tolerance, and enlighten the people around our shared human dignity.

Distinguished experts,
Distinguished participants,

Tolerance must manifest itself not only in our personal relations, but at the societal level as well. In the realm of opinion and politics, tolerance is a virtue by which liberated minds conquer the vice of bigotry and hatred. Tolerance implies more than the passive enduring of ideas different from our own. Conceived more actively, tolerance is the positive and respectful effort to understand and defend another’s beliefs, practices, and habits without necessarily sharing or accepting them. We must all embrace and defend the right of others to speak freely and disagree with us.

I encourage you to apply your wisdom and evolving intellectual perspective, gained from your participation in past events, to compare the findings of the previous workshops, draw on lessons learned, identify useful practices, and present suggestions to the High Commissioner on ways to enhance our understanding and practice of prohibition of incitement to hatred through a multiplicity of tools at domestic, regional and international level.

The High Commissioner was not able to attend this event, but she asked me to represent her and to debrief her on your deliberation. Having reviewed the conference documents, I am aware of the magnitude of this exercise on this very sensitive and difficult topic. But I am also excited about its outcome. I am convinced that these discussions have been a great learning opportunity for all involved, and offer a model of how the international community can benefit from a genuine exercise in dialogue among experts with cool minds and warm hearts in exchanging experiences with and learning from each other.

I wish you the very best in your deliberation.

Thank you.