Taking “Great Care”: Defining Victims of Hate Speech Targeting Religious Minorities
This Comment explores the intersection of race and religion in cases brought before the Human Rights Committee alleging violations of Article 20(2) of the International Covenant on Civil and Political Rights. This article proposes a positive requirement for states parties to prohibit hate speech. Specifically, the following analysis considers Committee determinations of standing in cases brought by Muslims living in Europe who sought to challenge a state party’s response to discriminatory remarks made by public figures. This Comment argues that these determinations, which appear to implicitly endorse a lower threshold for group standing when both race and religion are under attack (rather than religion alone) lead to three undesirable outcomes: 1) they weaken promised protections for minorities; 2) they fail to acknowledge the internal racial diversity of religious communities and the growing salience of religious identity; and 3) they do not account for the range of ways in which religion, race, and ethnicity are coded in the content and interpretation of the hate speech. In light of this analysis, this Comment argues for a more consistent application of the Human Rights Committee’s own broad standard of admissibility.
Protecting individuals from discrimination on the basis of their race and religion has had a place on the U.N.’s agenda since its inception. Often this principle collides with concerns over the appropriate limits of freedom of expression.1
The International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights require a prohibition on advocacy of national, racial, or religious hatred from its members. See generally Elizabeth F. Defeis, Freedom of Speech and International Norms: A Response to Hate Speech, 29 Stan. J. Int’l. L. 57 (1992). Professor Defeis points out that, “‘[i]n contrast to the United States Constitution, international conventions specifically recognize that protected rights can be abused, often with the effect of denying others different rights.” Id. at 58. Prior to the founding of the U.N., the rights of minorities not to be discriminated against was also recognized through a series of post-World War I treaties promulgated by the League of Nations, although these protections were limited to minorities residing in specific states. Daniel Moeckli, Human Rights and Non-Discrimination in the ‘War on Terror’ 61 (2009).
Some scholars argue that hate crimes should not be separate or enhanced crimes. For a window into this debate within the United States, see generally Jeff Jacoby, Punish Crime, Not Thought Crime, in The Hate Debate: Should Hate be Punished as a Crime? 114–22 (Paul Iganski ed., 2002).
See Comparing Hate Speech Laws in the U.S. and Abroad, Nat’l Pub. Radio (Mar. 3, 2011), (https://perma.cc/54LX-PXPH.)
Id.
This Comment focuses specifically on hate speech by public figures that targets people based on protected statuses, namely religion and race. While the statuses of race and religion are intertwined, their evolution and trajectory within the U.N. have been distinct. This Comment explores the manner in which each status has developed through cases brought before two human rights adjudicatory bodies and highlights a troubling result: in some instances, Muslims have been denied standing to challenge state responses to discriminatory remarks on the grounds that their claims amount to actio popularis, or claims brought solely in the interest of the public, as opposed to personal, welfare.5
See Actio Popularis, Black’s Law Dictionary (10th ed., 2014).
See Nazila Ghanea, Are Religious Minorities Really Minorities?, 1 Oxford J. L. & Religion 57, 59–60 (2012) (“Religious minorities have always been assumed to be part and parcel of the minorities’ regime normatively, but have, in fact, rarely been protected through it.”); see also generally David Keane, Addressing the Aggravated Meeting Points of Race and Religion, 6 U. Md. L.J. Race, Religion, Gender & Class 367 (2006).
This Comment argues that international adjudicatory bodies should apply the same amount of deference to group standing when petitioners claim inciteful hate speech has targeted them because they are a religious minority as when petitioners claim that hate speech has targeted them because they are both a religious and racial minority. The need for this is illustrated by the odd results of several U.N. Human Rights Committee decisions involving Muslims living in European countries.7
Compare A.W.P. v. Denmark, Communication No. 1879/2009, Hum. Rts. Comm., U.N. Doc. CCPR/C/109/D/1879/2009, ¶ 6.4 (Nov. 25, 2013), and Andersen v. Denmark, Communication No. 1868/2009, Hum. Rts. Comm., U.N. Doc. CCPR/C/99/D/1868/2009 (Sept. 14, 2010) with Mohamed Rabbae et al. v. Netherlands, Communication No. 2124/2011, Hum. Rts. Comm., U.N. Doc. CCPR/C/117/D/2124/2011, ¶ 9.5 (Nov. 18, 2016).
These discrepancies are problematic for at least three reasons: 1) the determinations appear to curtail the comprehensiveness of promised protections against inciteful hate speech by public figures; 2) they seem to elide racial diversity within a religious community, potentially resulting in uneven protection within the same community even if hate speech is targeted broadly; and 3) they do not engage with the many ways race and religion may be intertwined in the speech of perpetrators and the perceptions of the broader public hearing the speech. The following analysis zeroes in on cases involving hate speech by a politician or other public figure, because hate speech by politicians is likely to pose a special threat to vulnerable groups as compared to private actors who engage in similar speech.
Section II gives a brief history of the U.N.’s current instruments addressing racial discrimination, religious discrimination, and freedom of expression. The Section considers the historical relationship between race and religion at the U.N. and then explains how they have remained separate but intertwined. The Section introduces two key documents—the International Covenant on Civil and Political Rights (ICCPR)8
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
International Convention for the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195 [hereinafter ICERD].
Section III outlines the legal mechanisms for challenging states parties’ responses to hate speech under the ICCPR and ICERD. The U.N. Human Rights Committee and the U.N. Committee for the Elimination of Racial Discrimination, the judicial bodies that administer ICCPR and ICERD respectively, have extended standing to members of groups targeted by the state party or not adequately protected by it.10
See Toonen v. Australia, Communication No. 488/1992, Hum. Rts. Comm., U.N. Doc CCPR/C/50/D/488/1992 (Dec. 25, 1991). See discussion in Section III.A, infra.
Section IV examines, in light of these decisions, the relationship between hate speech claims brought on the basis of race and religion and those brought on the basis of religion alone. It further examines how determinations of who counts as a victim of hate speech may be similar to attempts to define religion for the purposes of international law.
The U.N. has grappled with the intersection of racial discrimination, religious discrimination, and the right to free expression since its founding.11
See Keane, supra note 6, at 367–70.
G.A. Res. 217 (III) A, U.N. Universal Declaration of Human Rights, art. 2, Dec. 10, 1948 [hereinafter UDHR].
Id. at art. 7.
Id. at art. 18.
At the same time, the right to freedom of opinion and expression is enshrined in Article 19.15
Id. at art. 19.
See Defeis, supra note 1, at 97.
See discussion in Sections II.A–II.C, infra.
See ICCPR, supra note 8, at Article 19.3. Articles 18 and 19 of the U.N. Universal Declaration of Human Rights provided the template for the same articles within the International Covenant on Civil and Political Rights, but the UDHR lacks both the ICCPR’s “special duties and responsibilities” (Article 19.3) as well as its prohibition on incitement (Article 20) provisions. Compare UDHR, supra note 12, with ICCPR, supra note 8.
At the time of this writing, 169 states parties have ratified the ICCPR; an additional 6 are signatories, and 22 have taken no action. At the time of this writing, 179 states parties have ratified ICERD, 4 are signatories, and 14 have taken no action. For an interactive map of the status of the ICCPR, the ICERD, and related optional protocols, see Status of Ratification at U.N. Hum. Rts., Office of the High Commissioner, Ratification of 18 International Human Rights Treaties, https://perma.cc/8BBH-JMSP.
Race and religion are both enumerated as protected classes in the Universal Declaration of Human Rights (UDHR). However, status-based legal protections for race and for religion have not developed at the same pace or to the same extent. One scholar described international efforts to eliminate discrimination based on race and religion as “parallel, unequal regimes.”20
See Keane, supra note 6, at 367.
Id. Note that Professor Keane does not claim—nor does this author—that the problem of racial discrimination has somehow been solved because of a stronger legal infrastructure; this is merely a commentary on the development of each as a regime within international law. The question of effectiveness is left for another day.
The U.N. Declaration on Human Rights entitles every person to protection from discrimination, including on the basis of race.22
See UDHR, supra note 12, at Articles 2 and 7. For a brief adoption history, see https://perma.cc/86YC-DFYU.
See generally ICERD, supra note 9.
any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.24
24Id. at art 1.1.
Article 8 of ICERD established an adjudicatory body, the Committee for the Elimination of Racial Discrimination, to hear complaints brought by individuals against member states alleged to be in noncompliance with the Convention. Today, the Committee on the Elimination of Racial Discrimination continues to play a central role in international legal efforts to counter racial discrimination.25
See José A. Lindgren Alves, Race and Religion in the U.N. Committee on the Elimination of Racial Discrimination, 42 U.S.F. L. Rev. 941, 947–52 (2008). For an in-depth look at the interworking of the Committee on the Elimination of Racial Discrimination, see id., at 947 et seq.
In addition to hearing claims from individuals, the Committee continues to publish extensive country-specific findings that are presented during its regular session meetings. These files include state party reports, input from civil society organizations, national human rights institutions, information from other stakeholders, and concluding observations.26
See, for example, U.N. Hum. Rts., Office of the High Commissioner, CERD—International Convention on the Elimination of All Forms of Racial Discrimination (Nov. 20, 2017–Dec. 8, 2017), (https://perma.cc/B33F-7EZP.)
Another landmark effort to combat discrimination on the basis of race was the 2001 World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance in Durban, South Africa.27
U.N. Comm’n on Hum. Rts., The World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance (Aug. 31–Sept. 8, 2001), https://perma.cc/H7VF-D67U[hereinafter World Conference Against Racism]. The U.N. Commission on Human Rights was replaced by the Human Rights Council in 2006 by action of the U.N. General Assembly.
Id.
When the U.N. General Assembly convened for a third time, a convention on the elimination of racial discrimination was proposed and included support for addressing “manifestations of racial prejudice and religious intolerance.”29
Keane, supra note 6, at 372.
Id.
Id. at 373.
Id.
A Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief (DEAFIDBRB) was eventually adopted by the General Assembly in 1981 and offers the most in-depth discussion of religious discrimination of any U.N. document.33
G.A. Res. A/RES/36/55, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief (Nov. 25, 1981) [hereinafter DEAFIDBRB]; see also Hum. Rts. Council Res. A/HRC/RES/22/20, Freedom of Religion or Belief (Apr. 12, 2013); Hum. Rts. Council Res. A/HRC/RES/6/37, Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Dec. 14, 2007). For enactment and endorsement history of DEAFIDBRB, see U.N. Office of the High Commissioner for Hum. Rts., Human Rights Documents, https://perma.cc/TX52-HH3Y(last visited May 20, 2018).
See Lindgren Alves, supra note 25, at 945 (describing the DEAFIDBRB as having no more than “recommendary” force).
The U.N. established a Special Rapporteur on Religious Intolerance in 1986, a position renamed the Special Rapporteur on Freedom of Religion or Belief (SRFRB) in 2000.35
The name change was endorsed by the U.N. Economic and Security Council in 2000 and by the General Assembly, G.A. Res. A/RES/55/97 (Dec. 4, 2000). See U.N. Hum. Rts., Office of the High Commissioner, Special Rapporteur on Freedom of Religion or Belief, https://perma.cc/GBZ9-SLVC(last visited May 20, 2018).
In March 2016, for instance, then-SRFRB Heiner Bielefeldt visited Denmark on a three-day fact-finding mission. This visit was a first by a SRFRB to a Scandinavian country.36
U.N. Hum. Rts., Office of the High Commissioner, Preliminary Findings of Country Visit to Denmark by Heiner Bielefeldt Special Rapporteur on Freedom of Religion or Belief (Mar. 22, 2016),(https://perma.cc/LPL4-GLKR.)
Id. The SRFRB noted in particular the 2006 “cartoon crisis,” the role of the established Church of Denmark in an increasingly diverse society, and the 2015 decision of the government (surprisingly at the request of left-leaning political parties) to keep the blasphemy provision as part of the country’s penal code. Id. Related issues are taken up in some of the Human Rights Committee cases, see Section III, infra. This Comment is limited in scope to cases involving hate speech toward religious minorities and therefore does not explore cases involving, for instance, blasphemy. For a critical look at all state practices of limiting insulting speech, see Amal Clooney & Philippa Webb, The Right to Insult in International Law, 48 Colum. Hum. Rts. L. Rev. 1, 3–13 (2017).
The role of the Special Rapporteur is similar to that of the Committee on the Elimination of Racial Discrimination and the Human Rights Committee insofar as it involves the examination of state infringements on a fundamental right. However, the SRFRB’s work is both limited in its enforcement power, since the role does not carry a binding judicial capacity, and more expansive in its constructive aims, insofar as DEAFIDBRB conceptualizes religion as not just as a fundamental right to be protected but a means to an end of fulfilling the goals of the U.N. Charter. See, for example, DEAFIDBRB, supra note 33 (“Considering that it is essential to promote understanding, tolerance and respect in matters relating to freedom of religion and belief and to ensure that the use of religion or belief for ends inconsistent with the Charter of the U.N., other relevant instruments of the U.N. and the purposes and principles of the present Declaration is inadmissible . . . [c]onvinced that freedom of religion and belief should also contribute to the attainment of the goals of world peace, social justice and friendship among peoples and to the elimination of ideologies or practices of colonialism and racial discrimination”). Further exploration of this aim is outside the scope of this Comment. It is worth noting, however, that the use of religion in this constructive way is a potentially problematic undertaking for an inter-governmental organization even as such an aim may, independently be embraced by individuals and like-minded civil society organizations.
U.N. Hum. Rts. Office of the High Commissioner, Freedom of Religion: UN Expert Urges Denmark to Move Toward a More Inclusive ‘Danishness’ (Mar. 22, 2016), (https://perma.cc/XM4M-5BJN.)
Like freedom from discrimination based on race and religion, freedom of expression is part of the U.N. Declaration on Human Rights. Article 19 ensures the “right to freedom of opinion and expression,” including the “freedom to hold opinions without interference and to seek, receive[,] and impart information and ideas through any media regardless of frontiers.”40
UDHR, supra note 12, at art. 19.
Comm’n on Hum. Rts. Res. 1993/45, Right to Freedom of Opinion and Expression, ¶ 11 (Mar. 5, 1993).
Id. at Preamble. The special mandate gives further evidence of the impetus of the Commission on Human Rights (now the Human Rights Council) for establishing the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (SRPPRFOE). The preamble notes the Committee’s deep concern over reports of detention, discrimination, threats, and violence facing individuals within the “field of information” (journalists, editors, authors, printers, etc.). Id. The SRPPRFOE’s role was affirmed and extended in March 2008. Hum. Rts. Council Res. A/HRC/RES/7/36 (Mar. 28, 2008); see also Hum. Rts. Council Res. A/HRC/RES/16/4 (Mar. 24, 2011); Hum. Rts. Council Res. A/HRC/RES/25/2 (Mar. 27, 2014); Hum. Rts. Council Res. A/HRC/RES/34/18 (Mar. 24, 2017) (extending the mandate for three year periods).
Although the original mandate and subsequent renewals did not discuss hate speech, a 2002 report from the SRPPPRFOE took up the issue. Writing in a post-9/11 context,43
Writing four months after September 11, 2001, the SRPPPRFOE’s report urged “all Governments to refrain from targeting groups such as religious and ethnic minorities, political activists and the media and not to respond to terror by adopting laws which have a negative impact for the realization of human rights, in particular the right to freedom of opinion and expression as stated in article 19 of the Universal Declaration of Human Rights.” Economic and Social Council, Comm’n on Hum. Rts., Civil and Political Rights, Including the Question of Freedom of Expression, E/CN.4/2002/75, 5–6 (Jan. 30, 2002).
Id. at ¶ 62.
[i]n light of these concerns, the Special Rapporteur recognizes that hate speech calls for reasonable restrictions which are necessary to prevent incitement to acts of imminent violence, hatred or discrimination on grounds, among others, of race, religion, colour, descent, or ethnic or national origin. As such, and in accordance with the relevant international standards, the Special Rapporteur wishes to condemn any advocacy of national, racial or religious hatred that constitutes an incitement to discrimination, hostility or violence; such advocacy should be prohibited by law.45
45Id. at ¶ 64.
In doing so, the SRPPPRFOE expressed concern that such laws would be used against those they were intended to protect, especially in situations where “respect for human rights and the rule of law is weak.”46
Id. at ¶ 65.
Id.
The SRPPPRFOE’s report encouraged states to ratify the International Covenant for Civil and Political Rights,48
Id. at 5 (Executive Summary).
ICERD, supra note 9, at art. 19 ¶¶ 1–2.
Amal Clooney and Phillipa Webb note that the drafting history of this portion of Article 19 indicates that most states understood that these could include limitations to prevent “incitement to discrimination, hatred, and violence” but since these were included in the Article 20, enumerating them in Article 19 would have been “redundant.” Clooney & Webb, supra note 37, at 16.
ICERD, supra note 9, at art. 19 ¶ 3.
For a more detailed discussion, see Section III(b), infra.
Similarly, Article 4 of ICERD prohibits the advocacy of racial superiority, which includes both the incitement of racial discrimination as well as the “dissemination of ideas based on racial superiority or hatred.”53
ICERD, supra note 9, at art. 4. Recall that Article 20(2) of the ICCPR requires legal prohibitions on “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” See also Clooney & Webb, supra note 37, at 18 and n. 76 (noting that the plain language of Article 18 suggests states parties are required to criminalize speech, a conclusion the Committee on the Elimination of Racial Discrimination has recommended be reserved for “serious cases”).
ICERD, supra note 9, at art. 4.
Later U.N. documents affirm ICERD’s broad reach. For instance, the Durban Declaration and Programme of Action (DDPA),55
The World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, Durban Declaration and Programme of Action (Sept. 8, 2001), https://perma.cc/2MHS-5PBZ[hereinafter DDPA]; see also World Conference Against Racism, supra note 27.
DDPA, , supra note 55, at Programme of Action ¶ 75.
political parties to take concrete steps to promote equality, solidarity and non-discrimination in society, inter alia by developing voluntary codes of conduct that include internal disciplinary measures for violations therefore, so their members refrain from public statements and actions that encourage or incite racial discrimination, xenophobia and related intolerance.57
57P.O.E.M. v. Denmark, Communication No. 22/2002, Comm. on the Elimination of Racial Discrimination (CERD), U.N. Doc. CERD/C/62/D/22/2002, ¶ 7 (Mar. 19, 2003); see also A.W.R.A.P. v. Denmark, CERD, U.N. Doc. Communication No. 40/2007, CERD/C/71/D/37/2006 (Aug. 8, 2007); Andersen v. Demark, Communication No. 1868/2009, Hum. Rts. Comm., U.N. Doc. CCPR/C/99/D/1868/2009 (Sept. 14, 2010).
The Committee on the Elimination of Racial Discrimination welcomed the DDPA and used it as an opportunity to further enumerate measures to be taken to strengthen its own work combating racial discrimination.58
See Rep. of the CERD, U.N. Doc A/57/18, at 109–11 (2002).
On the one hand, these articles can be seen as providing strong protection of minority rights.59
Ghanea understands minority rights to include the “collective aspects of individual rights” and “possibly also . . . the protection of groups per se.” Nazila Ghanea, Minorities and Hatred Protections and Implications, 17 Int’l J. on Minority & Group Rts. 423, 423 (2010) (emphasis in original); see also Robin Edger, Are Hate Speech Provisions Anti-Democratic?: An International Perspective, 26 Am. U. Int’l. L. Rev. 119, 127, 154 (2011) (noting the proper balance is not between “free speech and offense “but between “free speech and equality”).
Ghanea, supra note 59, at 425–26. She compares the broad sweep of this article, which includes “national, racial or religious” hate or discrimination with the narrower focus of ICERD (“race, colour and ethnicity”). It is clear that sometimes targeted characteristics overlap and some may prove more salient than others. For instance, Ghanea approves of the fact that “linguistic minorities,” although represented in the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, are not included in Article 20. “The whipping up of linguistic hatred, alone rather than in conjunction with the other two grounds of race or religion, seemingly posed too remote a possibility for consideration.” Id. at 426.
Associate Professor in Human Rights Law, University of Oxford.
Ghanea, supra note 59, at 428.
Ghanea summarizes the three rationales identified and ultimately critiqued by D. Kretzmer. Those rationales are: 1) limiting the “spread of racist ideas”; 2) “protect[ing] the feelings of victims and maintain[ing] public peace”; and 3) highlight[ing] the “symbolic importance” of rejecting the “indignity of living in a society in which such speech is tolerated.” Id. at 432–33. She agrees with Kretzmer insofar as he concludes that there is “a sufficient enough relationship between racial prejudice and racial discrimination and violence to justify not disregarding it.” Id.; see David Kretzmer, Freedom of Speech and Racism, 8 Cardozo L. Rev. 445, 455–56 (1987).
Ghanea, supra note 59, at 432 (citing Scott J. Caitlin, A Proposal for Regulating Hate Speech in the United States: Balancing Rights Under the International Covenant on Civil and Political Rights, 69 Notre Dame L. Rev. 771, 777 (1994)).
On the other hand, scholars have expressed concern that the concept of “special responsibilities” unduly restricts the rights associated with free expression.65
Clooney & Webb, supra note 37, at 17. Clooney & Webb note that the drafting history of Article 20 reveals that it was first proposed by a Soviet diplomat seeking to provide a “powerful weapon . . . to restrict the dissemination of Nazi-Fascist propaganda.” Id. (quoting U.N. Comm. on Hum. Rts. Drafting Comm., 2nd Sess., 28th mtg. at 3, U.N. Doc. E/CN.4/AC.1/SR.28 (May 18, 1948)). It was adopted with fifty-two votes in favor, nineteen against, and twelve abstentions. Id. For a more in-depth discussion of the reservations, see generally Clooney & Webb, supra note 37.
Id. at 21; see also Mark Osiel, Rights to Do Grave Wrong, 5 J. Legal Analysis 107, 107 (2013) (arguing that some dangers ought to be “mitigated by extra-judicial encumbrances on their irresponsible exercise” rather than through laws).
Finally, the SRPPPRFOE has suggested that politicians and other public figures have their own special responsibilities not to engage in hate speech.67
Clooney & Webb, supra note 37, at 27–28. (collecting and recounting cases decided before the European Court of Human Rights that have taken both approaches).
G.A. Res. A/67/357, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, at 21 (Sept. 7, 2012).
Id. at 19, ¶ 65.
Id. at 23, ¶ 81.
The cases explored in the next Section demonstrate both the balancing act lauded by Ghanea, and the discretionary challenges highlighted by Clooney and Webb.
The Human Rights Committee and the Committee for the Elimination of Racial Discrimination adopted a broad standard for determining who qualifies as a “victim” for the purposes of seeking relief.71
Toonen, supra note 10; Oslo Jewish Community v. Norway, Communication No. 30/2003, CERD, U.N. Doc. CERD/C/67/D/30/2003, ¶ 3.2 (2005). The standard, established by the Human Rights Committee, has also been adopted by the European Court of Human Rights, a body whose decisions are outside the scope of this Comment.
The Human Rights Committee first articulated a broad standing requirement in the 1993 case, Toonen v. Australia,72
Toonen, supra at note 10. Although this case did not involve hate speech or racial/religious discrimination, the standard CCPR adopted in Toonen has been applied in such cases.
Id. at ¶ 2.7.
Id. at ¶ 3.1(a). Article 17 of the ICCPR prohibits “arbitrary or unlawful interference” with “privacy, family, home or correspondence” and “unlawful attacks” on honor and reputation. ICCPR, supra note 8, at art. 17.
Toonen, supra at 10, ¶ 3.1.
Id. at ¶ 2.5.
Id. at ¶ 2.6.
Id. at ¶ 3.3.
In determining whether Toonen qualified as a victim for the purposes of Article 1 of the Optional Protocol (the enabling document of the ICCPR),79
G.A. Res. 2200A (XXI) Optional Protocol to the International Covenant on Civil and Political Rights (Dec. 16, 1966).
Id. at ¶ 5.1. The Committee ultimately found a violation of Article 17 and found it unnecessary to address the question of an Article 26 violation. Id. at ¶ 11. It is also worth noting that in this case, unlike the others discussed later in this Comment, the state party largely agreed with the charges brought by the petitioner insofar as they related to specifically to Tasmania, noting that the rest of the country had already repealed such laws.
In subsequent opinions, the Committee emphasized that Toonen did not establish a standing requirement so broad as to encompass actio popularis claims; 81
Claims brought by a member of the public “in the interest of the public welfare.” Actio Popularis, supra note 5.
A.W.P., supra note 7; Andersen, supra note 7, at ¶ 6.4.
Mohamed Rabbae, supra note 7.
CERD first applied the Toonen standard in its 2003 decision Oslo Jewish Community v. Norway,84
Oslo Jewish Community, supra note 71.
Id. at ¶ 3.2.
Id. at ¶ 2.5.
The petitioners acknowledged that their argument was one of first impression before the Committee on the Elimination of Racial Discrimination, but argued that Toonen should be applied as it had been by the Human Rights Committee, namely to extend victim status to “all members of a particular group, as the mere existence of a particular legal regime may directly affect the rights of the individual victims within the group.”87
Id. at ¶ 3.2.
Id. at ¶ 7.4.
The ICCPR, adopted by the U.N. General Assembly in 1966 and ratified in 1976, recognizes the “inherent dignity” and “equal and inalienable rights of all members of the human family.” 89
ICCPR, supra note 8, at Preamble.
Id. at art. 20(1) (prohibiting “war propaganda”).
Furthermore, Articles 2 and 3 establish that a state party has certain responsibilities toward individuals within its jurisdiction. These obligations include ensuring that equal rights are upheld regardless of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”91
Id., at art. 2(2).
Id. at art. 2(3). ICCPR contains an article for which there is no analog in ICERD. Article 4 grants states, in times of “public emergency which threatens the life of the nation and the existence of which is officially proclaimed,” to take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Id. Several articles are exempt from this derogation clause, including Article 18, which protects the “freedom of thought, conscience and relation,” and of individuals to be freedom from coercion that would impair that freedom to have/adopt a religion or belief of choice, subject only to “such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.” Id. at art. 18. Other articles exempted from Article 4 include Articles 6 (inherent right to life), 7 (right not to be tortured), 8 (paragraphs 1 [prohibition on slavery] and 2 [prohibition on servitude]), 11 (no imprisonment for inability to fulfill a contract), 15 (right not to be convicted of a criminal offense if not an offense at time of commission), and 16 (right to be recognized everywhere as a “person before the law”). Id. at art. 4, ¶ 2; see also id. at art. 19 (protecting the right to “hold opinions without interference” and the right to freedom of expression,” which comes with “special duties and responsibilities,” which may lead to certain “restrictions” as are “necessary for “respect of the rights or reputations of others” or for the “protection of national security or of public order . . . or public health or morals”).
See U.N. Hum. Rts. Office of the High Commissioner, Jurisprudence, https://perma.cc/A33K-JBRG. The Human Rights Council has been a subsidiary organ of the U.N. General Assembly since 2006; its predecessor was the Commission on Human Rights, the body that created the Special Rapporteur on Religious Tolerance in 1986. Michael Weiner, Mandate of the Special Rapporteur on Freedom of Religion or Belief––Institutional, Procedural and Substantive Legal Issues, 2 Religion & Hum. Rts. 3, 3–5 (2007). An individual may only bring a complaint against a state that is party to the First Optional Protocol to the ICCPR. See U.N. Hum. Rts. Office of the High Commissioner, Complaint Procedures, https://perma.cc/GV9K-JQVY.
The following cases were brought by individuals who claimed that a state party failed to sufficiently remedy discriminatory speech by a state actor who, at least in part, singled out the petitioner or the petitioner’s community on the basis of religion. These cases fall under Articles 20(2) and the enforcement articles (2 and 3) of the ICCPR. The discussion here focuses on Article 20(2) cases.94
As discussed in Section II above, Article 18, in contrast to Article 20, guarantees the right to freedom of thought, conscience, and religion and therefore the role of the state party differs in cases brought under one article than cases brought under the other. In Article 20(2) cases (often in conjunction with Article(s) 2 and/or 3), the state’s prosecutorial, judicial, or administrative decisions toward a third party are being challenged as inadequate. In article 18 cases, the state itself is accused of infringing upon an individual’s right to freedom of religion.
1. A.W.P. v. Denmark
In a 2009 case, A.W.P. v. Denmark,95
A.W.P. v. Denmark, supra note 7.
See Oslo Jewish Community v. Norway, supra note 71; Case of Open Door and Dublin Well Women v. Ireland, 64/1991/316/387–388, Eur. Ct. Hr. Rts. (Oct. 29, 1992).
A.W.P. v. Denmark, supra note 7, at ¶ 2.1.
The DPP member stated: “just like the Nazis believed that everyone from another race should be eliminated it is the belief in Islam that everyone of another faith must be converted if not eliminated.”98
Id.
Id.
Id.
The petitioner, a Muslim man and Danish citizen, saw the comparison of Islam to Nazism as a personal insult that “create[d] a hostile environment” and amounted to “concrete discrimination against him.”101
Id. at ¶ 2.2.
A.W.P. v. Denmark, supra note 7, at ¶ 2.4. Requirements needed to qualify as an “injured person” according to the Act of on the Administration of Justice section 749(3). Id.
Id.
(1) Any person who, publicly or with the intention of wider dissemination, makes a statement or imparts other information by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin, religion, or sexual inclination shall be liable to a fine or to imprisonment for any term not exceeding two years.104
104Id. (citing Danish Criminal Code Sec. 266(b)). Denmark further argued that Section 266(b) was not intended to narrow political debate or curb the way in which topics are presented as it is especially important for elected representative to have freedom of expression. Id. at ¶ 4.10. The petitioner in this case challenged the state’s lack of investigation into whether the statements in question fell within section 266(b), ¶ 2 makes the use of “propaganda” for disseminating such messages an aggravating factor.
The fact that a statement is made “in the nature of propaganda activities” is considered an aggravating circumstance.105
Id. at ¶ 2.4 & n. 2.
The state party challenged, inter alia, the petitioner’s claim that the remarks fell within the scope of Article 20(2), noting that the politicians’ remarks took place within the context of a public debate, were condemned by the majority of other members of Parliament and, although offensive, did not incite religious hatred.106
A.W.P. v. Denmark, supra note 7, at ¶¶ 4.5–4.6.
Id. at ¶ 4.13.
The Human Rights Committee determined that the petitioner did not qualify as a victim with regard to Articles 20(2) and 27 of the ICCPR, because he “failed to establish that those specific statements had specific consequences for him or that the specific consequences of the statements were imminent and would personally affect him.”108
Id. at ¶ 6.4. See Jeroen Temperman, Religious Hatred and International Law: The Prohibition of Incitement to Violence or Discrimination 113 (2016).
Id.
In a concurring opinion, three Committee members argued, citing Toonen, that the HRC should dispose of the case based on the petitioner’s failure to substantiate his claims of violation of his rights, rather than because of a lack of victim status.110
A.W.P. v. Denmark (concurring opinion by Mr. Yuva Shany, Mr. Fabian Omar Savlvioli & Mr. Victor Manuel Rodríguez-Rescia), supra note 110, at ¶ 1.
2. Andersen v. Denmark
The facts and outcome of Andersen v. Denmark111
Andersen, supra note 7.
Id. at ¶ 3.2.
Id. at ¶ 2.1.
Id. at ¶ 3.4.
As in A.W.P., the Committee determined that Andersen’s claim amounted to an actio popularis attempt and was therefore inadmissible. In this case, Andersen had “failed to establish that the statement by Ms. Kjærsgaard had specific consequences for her or that the specific consequences of the statements were imminent and would personally affect” her.115
Id. at ¶ 6.4.
It is possible that the outcome of both A.W.P. and Andersen can be explained simply by “weak” facts: the speech in question just did not rise to the level of incitement.116
Temperman, supra note 108, at 113.
See Section IV(B), infra, and accompanying notes.
3. Mohamed Rabbae et al. v. Netherlands
In contrast to A.W.P. and Andersen, petitioners in Mohamed Rabbae v. Netherlands118
Mohamed Rabbae, supra note 7.
Id. at ¶ 2.11. In A.W.P. v. Denmark and Andersen v. Denmark the race of the petitioners is not discussed; there is only reference to both being native-born Danes. See A.W.P. v. Denmark, supra note 7, at ¶¶ 1, 4.13.
Mohamed Rabbae, supra note 7, at ¶ 2.1.
Id.
The public prosecutor originally declined to prosecute, but was ultimately compelled to bring charges by an appellate court order.122
A number of victims exercised their right under domestic law and lodged complaints with the court of appeal against the prosecutor’s decision not to prosecute. Id. at ¶ 2.2.
Id. at ¶ 2.2. The charges were brought pursuant to sections 137(c) and 137(d) of the Dutch Criminal Code. Id.
Id.
Id. at ¶ 2.7; see also id. at ¶ 7.6 (noing that the domestic court had found that, while Mr. Wilders was “on the edge of criminal activity” with his comments about the need for the Dutch to defend themselves against the influx of Muslims to the country, he reined himself in when he said he was “not against Muslims but against Islam,” a distinction the petitioners argued did not “alter the essence and effect of his utterances”).
The demographic composition of the population is the biggest problem in the Netherlands. I am talking about what comes to the Netherlands and what multiplies here. If you look at the figures and its development. Muslims will move from the big cities to the countryside. We have to stop the tsunami of Islamization. That stabs us in the heart, in our identity, in our culture. If we do not defend ourselves, then all other items from my programme will prove to be worthless.126
126Id. at ¶ 2.7.
In other statements, he directly linked Islam, Moroccan young people, and violence and expressed support for commentators who said that a “third Islamic invasion” is underway.127
Id. at ¶ 2.7.
Id. at ¶ 2.6.
The petitioners in this case were Moroccan Muslims who felt that they were “personally and directly affected by Mr. Wilders’ hate speech” and claimed to have “suffer[ed] its effects in their daily lives,” either through personal attacks or threats and humiliation online.129
Id. at ¶ 2.11.
Id. at ¶ 2.1.
Id. at ¶ 2.9.
Id. at ¶ 2.10.
Id. at ¶ 2.11.
Here, the Human Rights Committee rejected the state party’s contention that the claims in question amounted to actio popularis. The Committee explained that the petitioners
do not bring abstract clams as members of the general population of the State party. The authors are Muslims and Moroccan nationals, and allege that Mr. Wilders’ statements specifically target Muslims, Moroccans, non-Western immigrants and Islam. The authors are therefore members of the category of persons who were the specific focus of Mr. Wilders’ statements. . . . Mr. Wilders’ statements had specific consequences for them, including in creating discriminatory social attitudes against the group and against them as members of the group.134
134Id. at ¶ 9.6.
Although the Committee ultimately decided that there was no breach of the ICCPR on the merits, the fact that the petitioners were granted standing is interesting in light of the Committee’s decision in A.W.P. v. Denmark and Andersen v. Denmark. The Human Rights Committee does not require that Article 20(2) claims—or claims pursuant to any article of the Covenant—allege multiple forms of discrimination. However, the Committee’s decisions about who counts as a “victim” for the purposes of initial standing determinations raise the issue.
The following cases before the Committee on the Elimination of Race Discrimination bear a striking resemblance to Mohamed Rabbae and offer a useful comparison of how each body analyzes standing.
The Committee on the Elimination of Racial Discrimination, the adjudicatory body charged with overseeing the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),135
As of October 2017, there were 178 states party to the Convention on the Elimination of All Forms of Racial Discrimination. U.N. Hum. Rts., Office of the High Commissioner, Statement by Ms. Anastasia Crickley, Chairperson of the Committee on the Elimination of Racial Discrimination at the 72nd session of the General Assembly (Oct. 31, 2017), (https://perma.cc/LF4N-FJ5W). As of July 2017, only 57 of the 177 member states have made “an optional declaration recognizing the Committee’s competence to receive communications under article 14 of the Convention.” U.N. Hum. Rts., Office of the High Commissioner, Opening Address by Adam Abdelmoula, Director Human Rights Committee and Treaty Mechanisms Division, at the 93rd session of the Committee on the Elimination of Racial Discrimination (July 31, 2017), (https://perma.cc/K5BF-MQ8K.)
Recall that Article 4 prohibits both advocacy that may incite racial discrimination and the “dissemination of ideas based on racial superiority or hatred.” ICERD, supra note 9, at art. 4.
Lindgren Alves, supra note 25, at 942. However, the Committee on the Elimination of Racial Discrimination does review the status of religious discrimination as presented in country reports submitted to the committee. Id. at 950.
Other cases brought alleging a violation of Article 4 involve remarks against a Roma minority. See, for example, Zentralrat Deutscher Sinti und Roma et al. v. Germany, Communication No. 038/2006, CERD, U.N. Doc. CERD/C/72/D/38/2006 (Mar. 3, 2008) (dismissing complaint brought against vice-chairman of the German Detective Police Officers because opinion article expressing anti-Roma views was written in his private capacity and he had been disciplined); Durmic v. State Union of Serbia and Montenegro, Communication No. 29/2003, CERD, U.N. Doc. CERD/C/68/D/29/2003 (Feb. 20–Mar. 10, 2006) (finding violation of Article 4 because state failed to question the thoroughness of the investigation into alleged discrimination of a man of Roma descent). Cases involving other minorities have also been brought before the CERD, including T.B.B v. Germany, Communication No. 48/2010, CERD, U.N. Doc. CERD/C/82/D/48/2010 (2013) (finding a violation of Article 2 because Germany failed to investigate whether a finance minister’s derogatory statements about people of Turkish origin amounted to “dissemination of ideas based upon racial superiority or hatred”).
Lindgren Alves, supra note 25, at 946. Lindgren Alves also notes that the Committee on the Elimination of Racial Discrimination has been able to “adapt to new circumstances” in no small part because of the “flexibility allowed by its rules of procedure.” Id. at 948.
As discussed above, the Committee on the Elimination of Racial Discrimination adopted the Toonen standard in a 2003 case, Oslo Jewish Community v. Norway. The Committee’s usage of the Toonen standard in Oslo Jewish Community has been broader than its counterpart, the Human Rights Committee.140
See Temperman, supra note 108.
In a pre-Oslo Jewish Community case, Quereshi v. Denmark,141
Quereshi v. Denmark, Communication No. 27/2002, CERD, U.N. Doc. CERD/C/63/D/27/2002 (Oct. 23, 2002).
These included a party press release that decried the rape of Danish women by “the Mohammedans,” who ought to “behave like the guests they are in this country” and if not, “then the politicians in the parliament [sic] have to change course and expel them all.” Id. at ¶ 2.1.
Id. at ¶ 2.2.
Id. at ¶ 7.2.
Id. at ¶ 7.3.
In Gelle v. Denmark,146
Gelle v. Denmark, Communication No. 34/2004, CERD, U.N. Doc. CERD/C/68/D/34/2004 (Mar. 6, 2006).
Id. at ¶ 2.2. This is the same member of Parliament whose remarks were the impetus for the ICCPR challenge in Andersen v. Denmark, see discussion in Part II(A)(2), supra.
See id. at ¶ 2.2 & n. 1; see also Section III(b)(1), supra.
On the question of whether the challenge had been sufficiently substantiated by the petitioner, the Committee determined that Kjærsgaard’s statements were offensive enough to clear the initial hurdle of whether they fell within the scope of Articles 2.1(d), 4, and 6.149
Id. at ¶ 6.2.
Gelle, supra note 146, at ¶ 7.4.
Id. at ¶ 7.5 (citing Rep. of CERD on its Sixty-Fourth Session, General Recommendation 30: Discrimination against non-citizens, U.N. Doc. CERD/C/64/Misc.11/rev.3, ¶ 12 (Feb. 23–Mar. 12, 2004)). The legislation was enacted in March 2004 and it added a new provision of section 81 of the Criminal Code.
In a related case, Adan v. Denmark,152
Adan v. Denmark, Communication No. 43/2008, CERD, U.N. Doc. CERD/C/77/D/43/2008 (Sept. 21, 2010).
Id. at ¶ 2.2.
Id. at ¶ 3.4.
Id. at ¶ 5.6.
Id. at ¶ 7.7. A note on terms: I am using the same broad definition of racial discrimination in this analysis as is used in ICERD. See discussion in Section II(A), supra.
In Adan, Gelle, and Quereshi, the Committee largely accepted the petitioner’s status as a victim without much discussion. Even in instances like Quereshi, where no breach of the Convention was found, the preliminary question of standing was passively answered in the affirmative.157
But see Jama v. Denmark, Communication No. 41/2008, U.N. Doc. CERD/C/75/D/41/2008 (Aug. 21, 2009) (determining the Committee did not have authority to issue judgement in case involving a complaint brought by a Danish national of Somali origin challenging the determination that the statements of politician who claimed during a media interview that Somalis were responsible for a physical attack did not fall within the scope of section 266(b) of the Criminal Code prohibiting racist propaganda).
The U.N. decided long ago to protect religious and racial discrimination through different and distinct human rights instruments.158
Recall the broad interpretation the U.N. General Assembly adopted in ICERD, which includes ethnicity and national origin in the definition of racial discrimination. See Section II(a), supra.
This different treatment raises questions about how religion and religious membership are defined by adjudicatory bodies. It also highlights some of the recurring challenges in enforcing hate speech criminalization generally, namely deciding what content and context elevates speech to incitement. Nevertheless, the current framework of the U.N., including the Human Rights Committee, offers religious minorities protection from hate speech that has the potential to incite violence. If this protection is to be effective, the Human Rights Committee’s admissibility decisions cannot screen out tough cases as a means of avoiding analysis of the impact of such speech on all members of religious minority communities.
It is important to appreciate the intersectionality of identities and the unique and often compounding experience of being a “double” target of hate speech.159
See Adan v. Denmark, supra note 152, at ¶ 5.6. For a discussion of intersectionality, see Emily Grabham et al., Intersectionality and Beyond: Law Power, and the Politics of Location 1 (Emily Grabham et al. eds., 2009).
This is perhaps even more true for the Committee for the Elimination of Racial Discrimination as it continues to broaden its reach to include ethnic and religious discrimination. Stephanie E. Berry argues that the Committee on the Elimination of Racial Discrimination should continue this trend and that Muslim minorities living in non-Muslim majority countries should be brought more fully into its fold. See Stephanie E. Berry, Bringing Muslim Minorities within the International Convention on the Elimination of All Forms of Racial Discrimination––Square Peg in a Round Hole?, 11 Hum. Rts. L. Rev. 423 (2011). She recognizes this move places outside the fold native-born converts and young Muslims who may wish to acknowledge their Muslim identity but not foreground ethnic or national ties. Id. at 441. This author finds these reasons, coupled with the concerns raised in Section IV(A) of this Comment, sufficient not to pursue such a strategy.
At the same time, it is important to be aware of implicitly or explicitly conflating a particular religion with a racial or ethnic group because this can diminish the impact of hate speech protections. First, this conflation minimizes the pool of potential petitioners based on whether or not they identify as members of both a religious and a racial or ethnic minority. Second, and relatedly, the conflation of a particular religion with a racial or ethnic group may limit the range of hate speech content that is perceived as rising to the level of incitement.
José Lindgren Alves, a Brazilian diplomat and former member of the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, notes that racism and religious prejudice, while “commonly interlinked,” are “in essence different phenomena.”161
Lindgren Alves, supra note 25, at 942.
See Section II, supra.
Lindgren Alves, supra note 25, at 942.
The Human Rights Committee’s decisions on Article 20(2) claims brought by Muslims in Europe raise questions about the weight the Committee gives to such claims when the content facially includes religious discrimination alone. In cases involving hate speech directed at Muslims generally, the Human Rights Committee twice denied standing on the basis of religion alone164
A.W.P. v. Denmark, supra note 7, at ¶ 6.4; Andersen, supra note 7, at ¶ 6.4.
Mohamed Rabbae, supra note 7, at ¶ 9.6 (finding petitioners were “members of the category of persons who were the specific focus of Mr. Wilder’s statements,” namely “Muslims, Moroccans, and non-Western immigrants.”).
Not granting standing in cases of hate speech on the basis of religious identity alone fails to appreciate both the way in which religious and racial identity may be intertwined within religious communities and the way in which an individual may foreground one aspect of her identity over another. It is true, for instance, that the majority of Muslims living in Western Europe are either immigrants or from an immigrant background.166
Jocelyne Cesari, Securitization of Islam in Europe, in Muslims in the West after 9/11: Religion, Politics, and Law 9, 10–11 (Jocelyne Cesari ed., 2010).
Yasemin Shooman & Riem Spielhaus, The Concept of the Muslim Enemy in the Public Discourse, in Muslims in the West after 9/11: Religion, Politics, and Law 198, 198 (Jocelyne Cesari ed., 2010).
Furthermore, religious and racial discrimination implicitly, even if not explicitly, may be linked in the content of the hate speech, both from the perspective of the victim and from the perspective of broader society. For instance, in a survey of Muslims living in Europe, focus group participants in four large cities were asked about their state’s immigration policies. The consensus was that their religion was “a major reason for discrimination and exclusion,” because it clearly marked them as “other” against the backdrop of a Christian majority.168
Cesari, supra note 166, at 12.
Shooman & Spielhaus, supra note 167, at 198 (“[R]eligion is equated with the national majority and keeps the religious minority outside the national imagination, no matter how well integrated or assimilated the mebers of the minority are.”) (quoting Esra Ozyurek, Convert Alert: German Muslims and Turkish Christians as Threats to Security in the New Europe, in 51 Comp. Stud. Soc. & Hist. 91, 109 (2000)).
Professor Spencer Dew’s recent commentary on the meaning of the label “Muslim” in Danish society tracks this sentiment. The term “is a catch-all for non-white immigrants, refugees, and others considered alien to Danish culture.”170
Spencer Dew, Something Rotten in the State of Denmark, Sightings, The Martin Marty Center for the Pub. Understanding of Rel., Univ. of Chi. Div. Sch. (June 14, 2018), https://perma.cc/8X2Q-KNX4.Professor Dew is a visiting assistant professor of religion at Denison University.
Id. (quoting Roseanne Barr (@therealroseanne), Twitter, https://perma.cc/YJ4W-VRU5(last visited June 17, 2018).
Id.
If a petitioner is Muslim but cannot or does not claim status as a racial minority, the Toonen standard, properly applied, is still broad enough to recognize that individual has standing to bring an ICCPR Article 20(2) claim. The denial of standing in the Andersen case is a good example of the odd result if the standard is applied otherwise. While Ms. Andersen’s race is not made explicit—she is described only as a native-born Dane—she is visibly identifiable as Muslim because of her headscarf.173
See Andersen, supra note 7, at ¶ 1; see also supra note 119.
See Leon Moosavi, The Racialization of Muslim Converts in Britain and Their Experiences of Islamophobia, 41 J. Crit. Soc. 41 (2014). Moosavi conducted 37 in-depth interviews with white Muslim converts in Greater Manchester and explored how they, once identified as “Muslim” by non-Muslims, undergo a process he calls “re-racialization” within society. Id. at 43.
Determining what amounts to hate speech that rises to the level of “incitement” for the purposes of Article 20(2) remains challenging.175
See generally Section II(C), supra.
See A.W.P. v. Denmark (concurring opinion by Mr. Yuval Shany, Mr. Fabian Omar Savlvioli, & Mr. Victor Manuel Rodríguez-Rescia), supra note 7, at ¶ 2.
The Human Rights Committee’s decisions not to grant standing to Muslim petitioners in A.W.P. and Andersen, despite the broad Toonen standard, also raise questions about how adjudicatory bodies view religious group membership. To be clear, none of these decisions have challenged a petitioner’s claim of belonging to a Muslim community. However, the Human Rights Committee’s unfavorable admissibility decisions implicitly, if not explicitly, have the effect of signaling who is and who is not personally affected by hate speech within the same religious community. This judicial parsing raises similar concerns to those raised by judicial attempts to define religion.177
These concerns are not for the judiciary alone; they are also raised by legislative or executive/administrative attempts to define religion.
Legal efforts to define religion often end up establishing “rules for regulating social and legal relationships among people who may have sharply different attitudes about what religion is and what manifestations of it are entitled to protection.”178
T. Jeremy Gunn, The Complexity of Religion and the Definition of Religion in International Law, 16 Harv. Hum. Rts. J. 189, 195 (2003). T. Jeremy Gunn is an associate professor of international studies at Al Akhawayn University in Morocco, a senior fellow at the Center for the Study of Law and Religion at Emory Law School, and a member of the Organization for Security and Co-operation in Europe’s Office for Democratic Institutions and Human Rights’ Advisory Panel of Experts on Freedom of Religion.
Id. Although Article 18 is not the focus of the Comment, a brief look at some of the cases that have come before the Human Rights Committee illustrate Gunn’s point. See, for example, Arenz et al. v. Germany, Communication No. 1138/2002, Hum. Rts. Comm., U.N. Doc. CCPR/C/80/D/1138/2002 (Apr. 29, 2004) (finding claims against the state by members of the Church of Scientology who were ousted from a political party because of their beliefs were inadmissible on the grounds that it was not shown the courts acted arbitrarily); Goyet v. France, Hum. Rts. Comm., U.N. Doc. CCPR/C/94/D/1746/2008 (Oct. 30, 2008) (rejecting a challenge to state’s inclusion of Soka Gokkai, a Buddhist organization, on its list of “cults,” citing no injury could be shown by petitioner); Ch.H.O. v. Canada, Hum. Rts. Comm., U.N. Doc. CCPR/C/118/D/2195/2012 (Dec. 21, 2016) (upholding state’s decision to deport a Korean national who, because he identifies as a Jehovah’s Witness, refused conscription and was seeking asylum out of fear of reprisal). But see Sister Immaculate Joseph and 80 Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka v. Sri Lanka, Hum. Rts. Comm., U.N. Doc. CCPR/C/85/D/1249/2004 (Oct. 17–Nov. 3, 2005) (finding a successful challenge to state’s practice of preventing the incorporation of Christian organizations engaged in charity and teaching).
See Gunn, supra note 178, at 197. Gunn suggests abandoning scholarly definitions of religion altogether because they generally lack this perspective. See id. The author appreciates the complexity of the task but is wary of such a drastic move, especially given the continual evolution of scholarly definitions and thinking about religion.
Recall that in Mohamed Rabbae, the Human Rights Committee did not state it was relying on direct evidence of injury when deciding the petitioners were in fact victims. The Committee, noting the fact that the petitioners were members of targeted group(s), namely Muslims as well as Moroccans and immigrants, concluded that their claims were not being brought actio popularis.181
Mohamed Rabbae, supra note 7, at ¶ 9.6. The petitioners “allege that Mr. Wilders’ statements specifically target Muslims, Moroccans, non-Western immigrants and Islam. The authors are therefore members of the category of persons who were the specific focus of Mr. Wilders’ statements. . . . Mr. Wilders’ statements had specific consequences for them, including in creating discriminatory social attitudes against the group and against them as members of the group.” See text accompanying notes 130–35, supra.
Mohamed Rabbae, supra note 7, at ¶ 9.6.
The cases discussed above present a range of remarks flagged as inciteful hate speech, some of which targeted Muslims generally, while others focused on Muslims and racial and ethnic minorities. By denying initial victim status, the decisions of the Human Rights Committee appear to reify, even if unintentionally,183
Recall that in A.W.P. and Andersen the race of the petitioners is not discussed; the opinions state only that they are both native born Danes and their claims are distinguished from those in Mohamed Rabbae and Oslo Jewish Community insofar as the latter allege the state failed to intervene in instances of both religious and racial hatred.
Lindgren Alves, supra note 25, at 974 (citing CERD, 71st Sess. 1826th mtg. at 8, ¶ 39, U.N. Doc. CERD/C/SR. 1826 (Aug. 9, 2007)).
As noted in Section II, the question of whether international law ought to criminalize hate speech is a lively one. Some critics of hate speech criminalization point to the use of such laws to attack journalists and others in the “information business.”185
See text accompanying notes 40–47, supra.
ICCPR, supra note 8, at art. 20(2).
See, for example, G.A. Res. A/67/357, supra note 68, at 17.
The different outcomes at the admissibility stage highlight one of the concerns of critics who see penalizing hate speech as risky line-drawing. It is, after all, not easy to pin down what constitutes “incitement,” especially preemptively.188
See generally Clooney & Webb, supra note 37.
See G.A. Res. A/67/357, supra note 68, and accompanying text.
See Clooney & Webb, supra note 67, at 27–28.
Furthermore, these different standing outcomes for petitioners from the same religious community highlight fissures between how the Human Rights Committee conceives of protection of minority rights and the broad mandate of the ICCPR. For instance, one scholar analyzing hate crime protections in Canada notes that the debate is usually framed as between “free speech and offense,” but argues that the proper balance to consider is “free speech and equality.”191
Edger, supra note 59, at 127–28.
Id.
While the “free speech and equality” framing may not satisfy those critical of the potential scope of hate speech criminalization, this framing is useful for holding the Human Rights Committee to its own standard when it comes to hate speech cases involving religious minorities. This is, again, not to say that every Article 20(2) case should be decided in favor of the petitioners. It is, however, a call for consistency in initial determinations of standing.
At the time of this writing, the tension enshrined in Article 19 (the right to freedom of expression) and Article 20 (obligation of states to prevent hate speech that incites discrimination or violence) of the International Covenant on Civil and Political Rights shows no sign of resolution or irrelevancy. Internal diversity within religious communities and evolving notions of membership in these groups are also a reality and will likely continue to challenge social and legal notions of “who counts.” The ICCPR cases discussed in this Comment offer a glimpse into the complexity of victim experiences and the breadth of the vitriol aimed at minority communities.
This Comment examines several standing determinations by the Human Rights Committee in claims by Muslim petitioners alleging inadequate state response to inciteful hate speech by public figures. This Comment argues that irregular application of the Toonen standard truncates the scope of potential protections for religious minorities under ICCPR’s Article 20(2). It provides an examination of these cases in light of the historical development of the U.N.’s human rights instruments holding states parties accountable for protecting religious and racial minorities from discrimination. The SRPPPRFOE193
Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. See discussion in Section II(C), supra.
See E/CN.4/2002/75, supra note 43, at ¶ 62.
- 1The International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights require a prohibition on advocacy of national, racial, or religious hatred from its members. See generally Elizabeth F. Defeis, Freedom of Speech and International Norms: A Response to Hate Speech, 29 Stan. J. Int’l. L. 57 (1992). Professor Defeis points out that, “‘[i]n contrast to the United States Constitution, international conventions specifically recognize that protected rights can be abused, often with the effect of denying others different rights.” Id. at 58. Prior to the founding of the U.N., the rights of minorities not to be discriminated against was also recognized through a series of post-World War I treaties promulgated by the League of Nations, although these protections were limited to minorities residing in specific states. Daniel Moeckli, Human Rights and Non-Discrimination in the ‘War on Terror’ 61 (2009).
- 2Some scholars argue that hate crimes should not be separate or enhanced crimes. For a window into this debate within the United States, see generally Jeff Jacoby, Punish Crime, Not Thought Crime, in The Hate Debate: Should Hate be Punished as a Crime? 114–22 (Paul Iganski ed., 2002).
- 3See Comparing Hate Speech Laws in the U.S. and Abroad, Nat’l Pub. Radio (Mar. 3, 2011), (https://perma.cc/54LX-PXPH.)
- 4Id.
- 5See Actio Popularis, Black’s Law Dictionary (10th ed., 2014).
- 6See Nazila Ghanea, Are Religious Minorities Really Minorities?, 1 Oxford J. L. & Religion 57, 59–60 (2012) (“Religious minorities have always been assumed to be part and parcel of the minorities’ regime normatively, but have, in fact, rarely been protected through it.”); see also generally David Keane, Addressing the Aggravated Meeting Points of Race and Religion, 6 U. Md. L.J. Race, Religion, Gender & Class 367 (2006).
- 7Compare A.W.P. v. Denmark, Communication No. 1879/2009, Hum. Rts. Comm., U.N. Doc. CCPR/C/109/D/1879/2009, ¶ 6.4 (Nov. 25, 2013), and Andersen v. Denmark, Communication No. 1868/2009, Hum. Rts. Comm., U.N. Doc. CCPR/C/99/D/1868/2009 (Sept. 14, 2010) with Mohamed Rabbae et al. v. Netherlands, Communication No. 2124/2011, Hum. Rts. Comm., U.N. Doc. CCPR/C/117/D/2124/2011, ¶ 9.5 (Nov. 18, 2016).
- 8International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
- 9International Convention for the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195 [hereinafter ICERD].
- 10See Toonen v. Australia, Communication No. 488/1992, Hum. Rts. Comm., U.N. Doc CCPR/C/50/D/488/1992 (Dec. 25, 1991). See discussion in Section III.A, infra.
- 11See Keane, supra note 6, at 367–70.
- 12G.A. Res. 217 (III) A, U.N. Universal Declaration of Human Rights, art. 2, Dec. 10, 1948 [hereinafter UDHR].
- 13Id. at art. 7.
- 14Id. at art. 18.
- 15Id. at art. 19.
- 16See Defeis, supra note 1, at 97.
- 17See discussion in Sections II.A–II.C, infra.
- 18See ICCPR, supra note 8, at Article 19.3. Articles 18 and 19 of the U.N. Universal Declaration of Human Rights provided the template for the same articles within the International Covenant on Civil and Political Rights, but the UDHR lacks both the ICCPR’s “special duties and responsibilities” (Article 19.3) as well as its prohibition on incitement (Article 20) provisions. Compare UDHR, supra note 12, with ICCPR, supra note 8.
- 19At the time of this writing, 169 states parties have ratified the ICCPR; an additional 6 are signatories, and 22 have taken no action. At the time of this writing, 179 states parties have ratified ICERD, 4 are signatories, and 14 have taken no action. For an interactive map of the status of the ICCPR, the ICERD, and related optional protocols, see Status of Ratification at U.N. Hum. Rts., Office of the High Commissioner, Ratification of 18 International Human Rights Treaties, https://perma.cc/8BBH-JMSP.
- 20See Keane, supra note 6, at 367.
- 21Id. Note that Professor Keane does not claim—nor does this author—that the problem of racial discrimination has somehow been solved because of a stronger legal infrastructure; this is merely a commentary on the development of each as a regime within international law. The question of effectiveness is left for another day.
- 22See UDHR, supra note 12, at Articles 2 and 7. For a brief adoption history, see https://perma.cc/86YC-DFYU.
- 23See generally ICERD, supra note 9.
- 24Id. at art 1.1.
- 25See José A. Lindgren Alves, Race and Religion in the U.N. Committee on the Elimination of Racial Discrimination, 42 U.S.F. L. Rev. 941, 947–52 (2008). For an in-depth look at the interworking of the Committee on the Elimination of Racial Discrimination, see id., at 947 et seq.
- 26See, for example, U.N. Hum. Rts., Office of the High Commissioner, CERD—International Convention on the Elimination of All Forms of Racial Discrimination (Nov. 20, 2017–Dec. 8, 2017), (https://perma.cc/B33F-7EZP.)
- 27U.N. Comm’n on Hum. Rts., The World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance (Aug. 31–Sept. 8, 2001), https://perma.cc/H7VF-D67U[hereinafter World Conference Against Racism]. The U.N. Commission on Human Rights was replaced by the Human Rights Council in 2006 by action of the U.N. General Assembly.
- 28Id.
- 29Keane, supra note 6, at 372.
- 30Id.
- 31Id. at 373.
- 32Id.
- 33G.A. Res. A/RES/36/55, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief (Nov. 25, 1981) [hereinafter DEAFIDBRB]; see also Hum. Rts. Council Res. A/HRC/RES/22/20, Freedom of Religion or Belief (Apr. 12, 2013); Hum. Rts. Council Res. A/HRC/RES/6/37, Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Dec. 14, 2007). For enactment and endorsement history of DEAFIDBRB, see U.N. Office of the High Commissioner for Hum. Rts., Human Rights Documents, https://perma.cc/TX52-HH3Y(last visited May 20, 2018).
- 34See Lindgren Alves, supra note 25, at 945 (describing the DEAFIDBRB as having no more than “recommendary” force).
- 35The name change was endorsed by the U.N. Economic and Security Council in 2000 and by the General Assembly, G.A. Res. A/RES/55/97 (Dec. 4, 2000). See U.N. Hum. Rts., Office of the High Commissioner, Special Rapporteur on Freedom of Religion or Belief, https://perma.cc/GBZ9-SLVC(last visited May 20, 2018).
- 36U.N. Hum. Rts., Office of the High Commissioner, Preliminary Findings of Country Visit to Denmark by Heiner Bielefeldt Special Rapporteur on Freedom of Religion or Belief (Mar. 22, 2016),(https://perma.cc/LPL4-GLKR.)
- 37Id. The SRFRB noted in particular the 2006 “cartoon crisis,” the role of the established Church of Denmark in an increasingly diverse society, and the 2015 decision of the government (surprisingly at the request of left-leaning political parties) to keep the blasphemy provision as part of the country’s penal code. Id. Related issues are taken up in some of the Human Rights Committee cases, see Section III, infra. This Comment is limited in scope to cases involving hate speech toward religious minorities and therefore does not explore cases involving, for instance, blasphemy. For a critical look at all state practices of limiting insulting speech, see Amal Clooney & Philippa Webb, The Right to Insult in International Law, 48 Colum. Hum. Rts. L. Rev. 1, 3–13 (2017).
- 38The role of the Special Rapporteur is similar to that of the Committee on the Elimination of Racial Discrimination and the Human Rights Committee insofar as it involves the examination of state infringements on a fundamental right. However, the SRFRB’s work is both limited in its enforcement power, since the role does not carry a binding judicial capacity, and more expansive in its constructive aims, insofar as DEAFIDBRB conceptualizes religion as not just as a fundamental right to be protected but a means to an end of fulfilling the goals of the U.N. Charter. See, for example, DEAFIDBRB, supra note 33 (“Considering that it is essential to promote understanding, tolerance and respect in matters relating to freedom of religion and belief and to ensure that the use of religion or belief for ends inconsistent with the Charter of the U.N., other relevant instruments of the U.N. and the purposes and principles of the present Declaration is inadmissible . . . [c]onvinced that freedom of religion and belief should also contribute to the attainment of the goals of world peace, social justice and friendship among peoples and to the elimination of ideologies or practices of colonialism and racial discrimination”). Further exploration of this aim is outside the scope of this Comment. It is worth noting, however, that the use of religion in this constructive way is a potentially problematic undertaking for an inter-governmental organization even as such an aim may, independently be embraced by individuals and like-minded civil society organizations.
- 39U.N. Hum. Rts. Office of the High Commissioner, Freedom of Religion: UN Expert Urges Denmark to Move Toward a More Inclusive ‘Danishness’ (Mar. 22, 2016), (https://perma.cc/XM4M-5BJN.)
- 40UDHR, supra note 12, at art. 19.
- 41Comm’n on Hum. Rts. Res. 1993/45, Right to Freedom of Opinion and Expression, ¶ 11 (Mar. 5, 1993).
- 42Id. at Preamble. The special mandate gives further evidence of the impetus of the Commission on Human Rights (now the Human Rights Council) for establishing the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (SRPPRFOE). The preamble notes the Committee’s deep concern over reports of detention, discrimination, threats, and violence facing individuals within the “field of information” (journalists, editors, authors, printers, etc.). Id. The SRPPRFOE’s role was affirmed and extended in March 2008. Hum. Rts. Council Res. A/HRC/RES/7/36 (Mar. 28, 2008); see also Hum. Rts. Council Res. A/HRC/RES/16/4 (Mar. 24, 2011); Hum. Rts. Council Res. A/HRC/RES/25/2 (Mar. 27, 2014); Hum. Rts. Council Res. A/HRC/RES/34/18 (Mar. 24, 2017) (extending the mandate for three year periods).
- 43Writing four months after September 11, 2001, the SRPPPRFOE’s report urged “all Governments to refrain from targeting groups such as religious and ethnic minorities, political activists and the media and not to respond to terror by adopting laws which have a negative impact for the realization of human rights, in particular the right to freedom of opinion and expression as stated in article 19 of the Universal Declaration of Human Rights.” Economic and Social Council, Comm’n on Hum. Rts., Civil and Political Rights, Including the Question of Freedom of Expression, E/CN.4/2002/75, 5–6 (Jan. 30, 2002).
- 44Id. at ¶ 62.
- 45Id. at ¶ 64.
- 46Id. at ¶ 65.
- 47Id.
- 48Id. at 5 (Executive Summary).
- 49ICERD, supra note 9, at art. 19 ¶¶ 1–2.
- 50Amal Clooney and Phillipa Webb note that the drafting history of this portion of Article 19 indicates that most states understood that these could include limitations to prevent “incitement to discrimination, hatred, and violence” but since these were included in the Article 20, enumerating them in Article 19 would have been “redundant.” Clooney & Webb, supra note 37, at 16.
- 51ICERD, supra note 9, at art. 19 ¶ 3.
- 52For a more detailed discussion, see Section III(b), infra.
- 53ICERD, supra note 9, at art. 4. Recall that Article 20(2) of the ICCPR requires legal prohibitions on “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” See also Clooney & Webb, supra note 37, at 18 and n. 76 (noting that the plain language of Article 18 suggests states parties are required to criminalize speech, a conclusion the Committee on the Elimination of Racial Discrimination has recommended be reserved for “serious cases”).
- 54ICERD, supra note 9, at art. 4.
- 55The World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, Durban Declaration and Programme of Action (Sept. 8, 2001), https://perma.cc/2MHS-5PBZ[hereinafter DDPA]; see also World Conference Against Racism, supra note 27.
- 56DDPA, , supra note 55, at Programme of Action ¶ 75.
- 57P.O.E.M. v. Denmark, Communication No. 22/2002, Comm. on the Elimination of Racial Discrimination (CERD), U.N. Doc. CERD/C/62/D/22/2002, ¶ 7 (Mar. 19, 2003); see also A.W.R.A.P. v. Denmark, CERD, U.N. Doc. Communication No. 40/2007, CERD/C/71/D/37/2006 (Aug. 8, 2007); Andersen v. Demark, Communication No. 1868/2009, Hum. Rts. Comm., U.N. Doc. CCPR/C/99/D/1868/2009 (Sept. 14, 2010).
- 58See Rep. of the CERD, U.N. Doc A/57/18, at 109–11 (2002).
- 59Ghanea understands minority rights to include the “collective aspects of individual rights” and “possibly also . . . the protection of groups per se.” Nazila Ghanea, Minorities and Hatred Protections and Implications, 17 Int’l J. on Minority & Group Rts. 423, 423 (2010) (emphasis in original); see also Robin Edger, Are Hate Speech Provisions Anti-Democratic?: An International Perspective, 26 Am. U. Int’l. L. Rev. 119, 127, 154 (2011) (noting the proper balance is not between “free speech and offense “but between “free speech and equality”).
- 60Ghanea, supra note 59, at 425–26. She compares the broad sweep of this article, which includes “national, racial or religious” hate or discrimination with the narrower focus of ICERD (“race, colour and ethnicity”). It is clear that sometimes targeted characteristics overlap and some may prove more salient than others. For instance, Ghanea approves of the fact that “linguistic minorities,” although represented in the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, are not included in Article 20. “The whipping up of linguistic hatred, alone rather than in conjunction with the other two grounds of race or religion, seemingly posed too remote a possibility for consideration.” Id. at 426.
- 61Associate Professor in Human Rights Law, University of Oxford.
- 62Ghanea, supra note 59, at 428.
- 63Ghanea summarizes the three rationales identified and ultimately critiqued by D. Kretzmer. Those rationales are: 1) limiting the “spread of racist ideas”; 2) “protect[ing] the feelings of victims and maintain[ing] public peace”; and 3) highlight[ing] the “symbolic importance” of rejecting the “indignity of living in a society in which such speech is tolerated.” Id. at 432–33. She agrees with Kretzmer insofar as he concludes that there is “a sufficient enough relationship between racial prejudice and racial discrimination and violence to justify not disregarding it.” Id.; see David Kretzmer, Freedom of Speech and Racism, 8 Cardozo L. Rev. 445, 455–56 (1987).
- 64Ghanea, supra note 59, at 432 (citing Scott J. Caitlin, A Proposal for Regulating Hate Speech in the United States: Balancing Rights Under the International Covenant on Civil and Political Rights, 69 Notre Dame L. Rev. 771, 777 (1994)).
- 65Clooney & Webb, supra note 37, at 17. Clooney & Webb note that the drafting history of Article 20 reveals that it was first proposed by a Soviet diplomat seeking to provide a “powerful weapon . . . to restrict the dissemination of Nazi-Fascist propaganda.” Id. (quoting U.N. Comm. on Hum. Rts. Drafting Comm., 2nd Sess., 28th mtg. at 3, U.N. Doc. E/CN.4/AC.1/SR.28 (May 18, 1948)). It was adopted with fifty-two votes in favor, nineteen against, and twelve abstentions. Id. For a more in-depth discussion of the reservations, see generally Clooney & Webb, supra note 37.
- 66Id. at 21; see also Mark Osiel, Rights to Do Grave Wrong, 5 J. Legal Analysis 107, 107 (2013) (arguing that some dangers ought to be “mitigated by extra-judicial encumbrances on their irresponsible exercise” rather than through laws).
- 67Clooney & Webb, supra note 37, at 27–28. (collecting and recounting cases decided before the European Court of Human Rights that have taken both approaches).
- 68G.A. Res. A/67/357, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, at 21 (Sept. 7, 2012).
- 69Id. at 19, ¶ 65.
- 70Id. at 23, ¶ 81.
- 71Toonen, supra note 10; Oslo Jewish Community v. Norway, Communication No. 30/2003, CERD, U.N. Doc. CERD/C/67/D/30/2003, ¶ 3.2 (2005). The standard, established by the Human Rights Committee, has also been adopted by the European Court of Human Rights, a body whose decisions are outside the scope of this Comment.
- 72Toonen, supra at note 10. Although this case did not involve hate speech or racial/religious discrimination, the standard CCPR adopted in Toonen has been applied in such cases.
- 73Id. at ¶ 2.7.
- 74Id. at ¶ 3.1(a). Article 17 of the ICCPR prohibits “arbitrary or unlawful interference” with “privacy, family, home or correspondence” and “unlawful attacks” on honor and reputation. ICCPR, supra note 8, at art. 17.
- 75Toonen, supra at 10, ¶ 3.1.
- 76Id. at ¶ 2.5.
- 77Id. at ¶ 2.6.
- 78Id. at ¶ 3.3.
- 79G.A. Res. 2200A (XXI) Optional Protocol to the International Covenant on Civil and Political Rights (Dec. 16, 1966).
- 80Id. at ¶ 5.1. The Committee ultimately found a violation of Article 17 and found it unnecessary to address the question of an Article 26 violation. Id. at ¶ 11. It is also worth noting that in this case, unlike the others discussed later in this Comment, the state party largely agreed with the charges brought by the petitioner insofar as they related to specifically to Tasmania, noting that the rest of the country had already repealed such laws.
- 81Claims brought by a member of the public “in the interest of the public welfare.” Actio Popularis, supra note 5.
- 82A.W.P., supra note 7; Andersen, supra note 7, at ¶ 6.4.
- 83Mohamed Rabbae, supra note 7.
- 84Oslo Jewish Community, supra note 71.
- 85Id. at ¶ 3.2.
- 86Id. at ¶ 2.5.
- 87Id. at ¶ 3.2.
- 88Id. at ¶ 7.4.
- 89ICCPR, supra note 8, at Preamble.
- 90Id. at art. 20(1) (prohibiting “war propaganda”).
- 91Id., at art. 2(2).
- 92Id. at art. 2(3). ICCPR contains an article for which there is no analog in ICERD. Article 4 grants states, in times of “public emergency which threatens the life of the nation and the existence of which is officially proclaimed,” to take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Id. Several articles are exempt from this derogation clause, including Article 18, which protects the “freedom of thought, conscience and relation,” and of individuals to be freedom from coercion that would impair that freedom to have/adopt a religion or belief of choice, subject only to “such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.” Id. at art. 18. Other articles exempted from Article 4 include Articles 6 (inherent right to life), 7 (right not to be tortured), 8 (paragraphs 1 [prohibition on slavery] and 2 [prohibition on servitude]), 11 (no imprisonment for inability to fulfill a contract), 15 (right not to be convicted of a criminal offense if not an offense at time of commission), and 16 (right to be recognized everywhere as a “person before the law”). Id. at art. 4, ¶ 2; see also id. at art. 19 (protecting the right to “hold opinions without interference” and the right to freedom of expression,” which comes with “special duties and responsibilities,” which may lead to certain “restrictions” as are “necessary for “respect of the rights or reputations of others” or for the “protection of national security or of public order . . . or public health or morals”).
- 93See U.N. Hum. Rts. Office of the High Commissioner, Jurisprudence, https://perma.cc/A33K-JBRG. The Human Rights Council has been a subsidiary organ of the U.N. General Assembly since 2006; its predecessor was the Commission on Human Rights, the body that created the Special Rapporteur on Religious Tolerance in 1986. Michael Weiner, Mandate of the Special Rapporteur on Freedom of Religion or Belief––Institutional, Procedural and Substantive Legal Issues, 2 Religion & Hum. Rts. 3, 3–5 (2007). An individual may only bring a complaint against a state that is party to the First Optional Protocol to the ICCPR. See U.N. Hum. Rts. Office of the High Commissioner, Complaint Procedures, https://perma.cc/GV9K-JQVY.
- 94As discussed in Section II above, Article 18, in contrast to Article 20, guarantees the right to freedom of thought, conscience, and religion and therefore the role of the state party differs in cases brought under one article than cases brought under the other. In Article 20(2) cases (often in conjunction with Article(s) 2 and/or 3), the state’s prosecutorial, judicial, or administrative decisions toward a third party are being challenged as inadequate. In article 18 cases, the state itself is accused of infringing upon an individual’s right to freedom of religion.
- 95A.W.P. v. Denmark, supra note 7.
- 96See Oslo Jewish Community v. Norway, supra note 71; Case of Open Door and Dublin Well Women v. Ireland, 64/1991/316/387–388, Eur. Ct. Hr. Rts. (Oct. 29, 1992).
- 97A.W.P. v. Denmark, supra note 7, at ¶ 2.1.
- 98Id.
- 99Id.
- 100Id.
- 101Id. at ¶ 2.2.
- 102A.W.P. v. Denmark, supra note 7, at ¶ 2.4. Requirements needed to qualify as an “injured person” according to the Act of on the Administration of Justice section 749(3). Id.
- 103Id.
- 104Id. (citing Danish Criminal Code Sec. 266(b)). Denmark further argued that Section 266(b) was not intended to narrow political debate or curb the way in which topics are presented as it is especially important for elected representative to have freedom of expression. Id. at ¶ 4.10. The petitioner in this case challenged the state’s lack of investigation into whether the statements in question fell within section 266(b), ¶ 2 makes the use of “propaganda” for disseminating such messages an aggravating factor.
- 105Id. at ¶ 2.4 & n. 2.
- 106A.W.P. v. Denmark, supra note 7, at ¶¶ 4.5–4.6.
- 107Id. at ¶ 4.13.
- 108Id. at ¶ 6.4. See Jeroen Temperman, Religious Hatred and International Law: The Prohibition of Incitement to Violence or Discrimination 113 (2016).
- 109Id.
- 110A.W.P. v. Denmark (concurring opinion by Mr. Yuva Shany, Mr. Fabian Omar Savlvioli & Mr. Victor Manuel Rodríguez-Rescia), supra note 110, at ¶ 1.
- 111Andersen, supra note 7.
- 112Id. at ¶ 3.2.
- 113Id. at ¶ 2.1.
- 114Id. at ¶ 3.4.
- 115Id. at ¶ 6.4.
- 116Temperman, supra note 108, at 113.
- 117See Section IV(B), infra, and accompanying notes.
- 118Mohamed Rabbae, supra note 7.
- 119Id. at ¶ 2.11. In A.W.P. v. Denmark and Andersen v. Denmark the race of the petitioners is not discussed; there is only reference to both being native-born Danes. See A.W.P. v. Denmark, supra note 7, at ¶¶ 1, 4.13.
- 120Mohamed Rabbae, supra note 7, at ¶ 2.1.
- 121Id.
- 122A number of victims exercised their right under domestic law and lodged complaints with the court of appeal against the prosecutor’s decision not to prosecute. Id. at ¶ 2.2.
- 123Id. at ¶ 2.2. The charges were brought pursuant to sections 137(c) and 137(d) of the Dutch Criminal Code. Id.
- 124Id.
- 125Id. at ¶ 2.7; see also id. at ¶ 7.6 (noing that the domestic court had found that, while Mr. Wilders was “on the edge of criminal activity” with his comments about the need for the Dutch to defend themselves against the influx of Muslims to the country, he reined himself in when he said he was “not against Muslims but against Islam,” a distinction the petitioners argued did not “alter the essence and effect of his utterances”).
- 126Id. at ¶ 2.7.
- 127Id. at ¶ 2.7.
- 128Id. at ¶ 2.6.
- 129Id. at ¶ 2.11.
- 130Id. at ¶ 2.1.
- 131Id. at ¶ 2.9.
- 132Id. at ¶ 2.10.
- 133Id. at ¶ 2.11.
- 134Id. at ¶ 9.6.
- 135As of October 2017, there were 178 states party to the Convention on the Elimination of All Forms of Racial Discrimination. U.N. Hum. Rts., Office of the High Commissioner, Statement by Ms. Anastasia Crickley, Chairperson of the Committee on the Elimination of Racial Discrimination at the 72nd session of the General Assembly (Oct. 31, 2017), (https://perma.cc/LF4N-FJ5W). As of July 2017, only 57 of the 177 member states have made “an optional declaration recognizing the Committee’s competence to receive communications under article 14 of the Convention.” U.N. Hum. Rts., Office of the High Commissioner, Opening Address by Adam Abdelmoula, Director Human Rights Committee and Treaty Mechanisms Division, at the 93rd session of the Committee on the Elimination of Racial Discrimination (July 31, 2017), (https://perma.cc/K5BF-MQ8K.)
- 136Recall that Article 4 prohibits both advocacy that may incite racial discrimination and the “dissemination of ideas based on racial superiority or hatred.” ICERD, supra note 9, at art. 4.
- 137Lindgren Alves, supra note 25, at 942. However, the Committee on the Elimination of Racial Discrimination does review the status of religious discrimination as presented in country reports submitted to the committee. Id. at 950.
- 138Other cases brought alleging a violation of Article 4 involve remarks against a Roma minority. See, for example, Zentralrat Deutscher Sinti und Roma et al. v. Germany, Communication No. 038/2006, CERD, U.N. Doc. CERD/C/72/D/38/2006 (Mar. 3, 2008) (dismissing complaint brought against vice-chairman of the German Detective Police Officers because opinion article expressing anti-Roma views was written in his private capacity and he had been disciplined); Durmic v. State Union of Serbia and Montenegro, Communication No. 29/2003, CERD, U.N. Doc. CERD/C/68/D/29/2003 (Feb. 20–Mar. 10, 2006) (finding violation of Article 4 because state failed to question the thoroughness of the investigation into alleged discrimination of a man of Roma descent). Cases involving other minorities have also been brought before the CERD, including T.B.B v. Germany, Communication No. 48/2010, CERD, U.N. Doc. CERD/C/82/D/48/2010 (2013) (finding a violation of Article 2 because Germany failed to investigate whether a finance minister’s derogatory statements about people of Turkish origin amounted to “dissemination of ideas based upon racial superiority or hatred”).
- 139Lindgren Alves, supra note 25, at 946. Lindgren Alves also notes that the Committee on the Elimination of Racial Discrimination has been able to “adapt to new circumstances” in no small part because of the “flexibility allowed by its rules of procedure.” Id. at 948.
- 140See Temperman, supra note 108.
- 141Quereshi v. Denmark, Communication No. 27/2002, CERD, U.N. Doc. CERD/C/63/D/27/2002 (Oct. 23, 2002).
- 142These included a party press release that decried the rape of Danish women by “the Mohammedans,” who ought to “behave like the guests they are in this country” and if not, “then the politicians in the parliament [sic] have to change course and expel them all.” Id. at ¶ 2.1.
- 143Id. at ¶ 2.2.
- 144Id. at ¶ 7.2.
- 145Id. at ¶ 7.3.
- 146Gelle v. Denmark, Communication No. 34/2004, CERD, U.N. Doc. CERD/C/68/D/34/2004 (Mar. 6, 2006).
- 147Id. at ¶ 2.2. This is the same member of Parliament whose remarks were the impetus for the ICCPR challenge in Andersen v. Denmark, see discussion in Part II(A)(2), supra.
- 148See id. at ¶ 2.2 & n. 1; see also Section III(b)(1), supra.
- 149Id. at ¶ 6.2.
- 150Gelle, supra note 146, at ¶ 7.4.
- 151Id. at ¶ 7.5 (citing Rep. of CERD on its Sixty-Fourth Session, General Recommendation 30: Discrimination against non-citizens, U.N. Doc. CERD/C/64/Misc.11/rev.3, ¶ 12 (Feb. 23–Mar. 12, 2004)). The legislation was enacted in March 2004 and it added a new provision of section 81 of the Criminal Code.
- 152Adan v. Denmark, Communication No. 43/2008, CERD, U.N. Doc. CERD/C/77/D/43/2008 (Sept. 21, 2010).
- 153Id. at ¶ 2.2.
- 154Id. at ¶ 3.4.
- 155Id. at ¶ 5.6.
- 156Id. at ¶ 7.7. A note on terms: I am using the same broad definition of racial discrimination in this analysis as is used in ICERD. See discussion in Section II(A), supra.
- 157But see Jama v. Denmark, Communication No. 41/2008, U.N. Doc. CERD/C/75/D/41/2008 (Aug. 21, 2009) (determining the Committee did not have authority to issue judgement in case involving a complaint brought by a Danish national of Somali origin challenging the determination that the statements of politician who claimed during a media interview that Somalis were responsible for a physical attack did not fall within the scope of section 266(b) of the Criminal Code prohibiting racist propaganda).
- 158Recall the broad interpretation the U.N. General Assembly adopted in ICERD, which includes ethnicity and national origin in the definition of racial discrimination. See Section II(a), supra.
- 159See Adan v. Denmark, supra note 152, at ¶ 5.6. For a discussion of intersectionality, see Emily Grabham et al., Intersectionality and Beyond: Law Power, and the Politics of Location 1 (Emily Grabham et al. eds., 2009).
- 160This is perhaps even more true for the Committee for the Elimination of Racial Discrimination as it continues to broaden its reach to include ethnic and religious discrimination. Stephanie E. Berry argues that the Committee on the Elimination of Racial Discrimination should continue this trend and that Muslim minorities living in non-Muslim majority countries should be brought more fully into its fold. See Stephanie E. Berry, Bringing Muslim Minorities within the International Convention on the Elimination of All Forms of Racial Discrimination––Square Peg in a Round Hole?, 11 Hum. Rts. L. Rev. 423 (2011). She recognizes this move places outside the fold native-born converts and young Muslims who may wish to acknowledge their Muslim identity but not foreground ethnic or national ties. Id. at 441. This author finds these reasons, coupled with the concerns raised in Section IV(A) of this Comment, sufficient not to pursue such a strategy.
- 161Lindgren Alves, supra note 25, at 942.
- 162See Section II, supra.
- 163Lindgren Alves, supra note 25, at 942.
- 164A.W.P. v. Denmark, supra note 7, at ¶ 6.4; Andersen, supra note 7, at ¶ 6.4.
- 165Mohamed Rabbae, supra note 7, at ¶ 9.6 (finding petitioners were “members of the category of persons who were the specific focus of Mr. Wilder’s statements,” namely “Muslims, Moroccans, and non-Western immigrants.”).
- 166Jocelyne Cesari, Securitization of Islam in Europe, in Muslims in the West after 9/11: Religion, Politics, and Law 9, 10–11 (Jocelyne Cesari ed., 2010).
- 167Yasemin Shooman & Riem Spielhaus, The Concept of the Muslim Enemy in the Public Discourse, in Muslims in the West after 9/11: Religion, Politics, and Law 198, 198 (Jocelyne Cesari ed., 2010).
- 168Cesari, supra note 166, at 12.
- 169Shooman & Spielhaus, supra note 167, at 198 (“[R]eligion is equated with the national majority and keeps the religious minority outside the national imagination, no matter how well integrated or assimilated the mebers of the minority are.”) (quoting Esra Ozyurek, Convert Alert: German Muslims and Turkish Christians as Threats to Security in the New Europe, in 51 Comp. Stud. Soc. & Hist. 91, 109 (2000)).
- 170Spencer Dew, Something Rotten in the State of Denmark, Sightings, The Martin Marty Center for the Pub. Understanding of Rel., Univ. of Chi. Div. Sch. (June 14, 2018), https://perma.cc/8X2Q-KNX4.Professor Dew is a visiting assistant professor of religion at Denison University.
- 171Id. (quoting Roseanne Barr (@therealroseanne), Twitter, https://perma.cc/YJ4W-VRU5(last visited June 17, 2018).
- 172Id.
- 173See Andersen, supra note 7, at ¶ 1; see also supra note 119.
- 174See Leon Moosavi, The Racialization of Muslim Converts in Britain and Their Experiences of Islamophobia, 41 J. Crit. Soc. 41 (2014). Moosavi conducted 37 in-depth interviews with white Muslim converts in Greater Manchester and explored how they, once identified as “Muslim” by non-Muslims, undergo a process he calls “re-racialization” within society. Id. at 43.
- 175See generally Section II(C), supra.
- 176See A.W.P. v. Denmark (concurring opinion by Mr. Yuval Shany, Mr. Fabian Omar Savlvioli, & Mr. Victor Manuel Rodríguez-Rescia), supra note 7, at ¶ 2.
- 177These concerns are not for the judiciary alone; they are also raised by legislative or executive/administrative attempts to define religion.
- 178T. Jeremy Gunn, The Complexity of Religion and the Definition of Religion in International Law, 16 Harv. Hum. Rts. J. 189, 195 (2003). T. Jeremy Gunn is an associate professor of international studies at Al Akhawayn University in Morocco, a senior fellow at the Center for the Study of Law and Religion at Emory Law School, and a member of the Organization for Security and Co-operation in Europe’s Office for Democratic Institutions and Human Rights’ Advisory Panel of Experts on Freedom of Religion.
- 179Id. Although Article 18 is not the focus of the Comment, a brief look at some of the cases that have come before the Human Rights Committee illustrate Gunn’s point. See, for example, Arenz et al. v. Germany, Communication No. 1138/2002, Hum. Rts. Comm., U.N. Doc. CCPR/C/80/D/1138/2002 (Apr. 29, 2004) (finding claims against the state by members of the Church of Scientology who were ousted from a political party because of their beliefs were inadmissible on the grounds that it was not shown the courts acted arbitrarily); Goyet v. France, Hum. Rts. Comm., U.N. Doc. CCPR/C/94/D/1746/2008 (Oct. 30, 2008) (rejecting a challenge to state’s inclusion of Soka Gokkai, a Buddhist organization, on its list of “cults,” citing no injury could be shown by petitioner); Ch.H.O. v. Canada, Hum. Rts. Comm., U.N. Doc. CCPR/C/118/D/2195/2012 (Dec. 21, 2016) (upholding state’s decision to deport a Korean national who, because he identifies as a Jehovah’s Witness, refused conscription and was seeking asylum out of fear of reprisal). But see Sister Immaculate Joseph and 80 Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka v. Sri Lanka, Hum. Rts. Comm., U.N. Doc. CCPR/C/85/D/1249/2004 (Oct. 17–Nov. 3, 2005) (finding a successful challenge to state’s practice of preventing the incorporation of Christian organizations engaged in charity and teaching).
- 180See Gunn, supra note 178, at 197. Gunn suggests abandoning scholarly definitions of religion altogether because they generally lack this perspective. See id. The author appreciates the complexity of the task but is wary of such a drastic move, especially given the continual evolution of scholarly definitions and thinking about religion.
- 181Mohamed Rabbae, supra note 7, at ¶ 9.6. The petitioners “allege that Mr. Wilders’ statements specifically target Muslims, Moroccans, non-Western immigrants and Islam. The authors are therefore members of the category of persons who were the specific focus of Mr. Wilders’ statements. . . . Mr. Wilders’ statements had specific consequences for them, including in creating discriminatory social attitudes against the group and against them as members of the group.” See text accompanying notes 130–35, supra.
- 182Mohamed Rabbae, supra note 7, at ¶ 9.6.
- 183Recall that in A.W.P. and Andersen the race of the petitioners is not discussed; the opinions state only that they are both native born Danes and their claims are distinguished from those in Mohamed Rabbae and Oslo Jewish Community insofar as the latter allege the state failed to intervene in instances of both religious and racial hatred.
- 184Lindgren Alves, supra note 25, at 974 (citing CERD, 71st Sess. 1826th mtg. at 8, ¶ 39, U.N. Doc. CERD/C/SR. 1826 (Aug. 9, 2007)).
- 185See text accompanying notes 40–47, supra.
- 186ICCPR, supra note 8, at art. 20(2).
- 187See, for example, G.A. Res. A/67/357, supra note 68, at 17.
- 188See generally Clooney & Webb, supra note 37.
- 189See G.A. Res. A/67/357, supra note 68, and accompanying text.
- 190See Clooney & Webb, supra note 67, at 27–28.
- 191Edger, supra note 59, at 127–28.
- 192Id.
- 193Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. See discussion in Section II(C), supra.
- 194See E/CN.4/2002/75, supra note 43, at ¶ 62.