Sunday, February 14, 2016

Free Speech vs. Islamic Law? - Denis MacEoin

by Denis MacEoin

  • The law regarding freedom of speech and of religion, as it exists in the U.S. Constitution's First Amendment, is already compelled to protect all citizens and to extend that protection to non-citizens who come to American shores.
  • Are Muslims in need of greater protection? According to the FBI's 2014 Hate Crime Statistics, there were 1,140 victims of anti-religious hate crimes in the U.S. that year: Of those, 56.8% were victims of crimes motivated by the offenders' anti-Jewish bias. 16.1% were victims of crimes motivated by the offenders' anti-Muslim bias.
  • "We cannot agree that prohibiting speech is the way to promote tolerance, and because we continue to see the 'defamation of religions' concept used to justify censorship, criminalization, and in some cases violent assaults and deaths of political, racial, and religious minorities around the world." — U.S. Ambassador Eileen Donahoe.
  • Again and again, Muslim individuals and organizations have released documents to define Islamic human rights, and in each instance, all rights are restricted to those given by God and are subject to the phrase "according to the Shari'a."

The U.S. Congress, on December 17, 2015, passed House Resolution 569 and referred it to the House Committee on the Judiciary. The resolution is headed: "Condemning violence, bigotry, and hateful rhetoric towards Muslims in the United States." The problem is that the law regarding freedom of speech and of religion, as it exists in the U.S. Constitution's First Amendment, is already compelled to protect all citizens and to extend that protection to non-citizens, be they businessmen or tourists who come to American shores: "Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." No democracy should believe otherwise.

The House of Representatives' Resolution 569 introduces the following Whereas clauses:
(1) expresses its condolences for the victims of anti-Muslim hate crimes;

(2) steadfastly confirms its dedication to the rights and dignity of all its citizens of all faiths, beliefs, and cultures;

(3) denounces in the strongest terms the increase of hate speech, intimidation, violence, vandalism, arson, and other hate crimes targeted against mosques, Muslims, or those perceived to be Muslim;

(4) recognizes that the United States Muslim community has made countless positive contributions to United States society;

(5) declares that the civil rights and civil liberties of all United States citizens, including Muslims in the United States, should be protected and preserved;

(6) urges local and Federal law enforcement authorities to work to prevent hate crimes; and to prosecute to the fullest extent of the law those perpetrators of hate crimes; and

(7) reaffirms the inalienable right of every citizen to live without fear and intimidation, and to practice their freedom of faith.

The resolution seems above criticism -- every clause in it could seemingly have the wholesale approval approbation of anyone -- yet something feels incredibly wrong. That something is the question of why the U.S. House of Representatives has issued such a resolution for Muslims and Muslims only. They and everyone else -- Christians, Jews, Mormons, Buddhists, and Scientologists, right through to the adherents of satanic cults -- are already granted the full protection of the law so long as they do not break it.

Are Muslims, then, in need of greater protection than everyone else? Are they more subject to assaults, hate speech, arson attacks than any other religious community? If they were, this resolution might be welcome, even though it would not add a single article to existing legal protections. However, according to the FBI's Uniform Crime Reports: 2014 Hate Crime Statistics, of the 1,140 victims of anti-religious hate crimes that year in the U.S.:
  • 56 percent were victims of crimes motivated by the offenders' anti-Jewish bias.
  • 16.1 percent were victims of crimes motivated by the offenders' anti-Muslim bias.
  • 6.2 percent were victims of crimes motivated by the offenders' bias against groups of individuals of varying religions (anti-multiple religions, group).
  • 6.1 percent were victims of crimes motivated by the offenders' anti-Catholic bias.
  • 2.5 percent were victims of crimes motivated by the offenders' anti-Protestant bias.
  • 1.2 percent were victims of crimes motivated by the offenders' anti-Atheist/Agnostic bias.
  • 11.0 percent were victims of crimes motivated by the offenders' bias against other religions (anti-other religion).
On that basis, we might expect there to have been quite a few House Resolutions concerning Jews. All I have been able to find are: H.Res.293 "Expressing concern over anti-Israel and anti-Semitic incitement within the Palestinian Authority" and H.Res.354 – "Expressing the sense of the House of Representatives regarding the safety and security of Jewish communities in Europe."

Again, both Senate and Congress have issued resolutions to condemn the persecution of the Baha'i religious minority in Iran.[1] But as the Baha'is are not persecuted in the U.S., one might not expect a resolution concerning their protection under U.S. law. These might be worthy resolutions, but have no relevance for the United States as such.

Surely, then, there should be laws protecting Jews! However, neither H.Res. 293 nor H.Res. 354 addresses that issue in distinction to H.Res. 569, which specifically concerns Muslims "in the United States." The disparity between anti-Jewish hate crimes and the much smaller incidence of anti-Muslim crimes stands in stark contrast to the indifference of Congress towards Jews in an age of rapidly rising anti-Semitism and what appears excessive (though decent) concern for Muslims.

In reality, of course, there is no need for extra legislation to protect Jews. They are already protected by existing laws, as are all other religious communities, as noted above.

Why, then, did not a single member of Congress get up on the floor to point out this manifest discrepancy? Surely it must be obvious that, should the resolution pass into law, Muslims will be the only group (religiously, politically, ethnically, or what you will) in the United States to be ring-fenced from anything that might offend them.

We know that Muslims and Muslim authorities are not robust in taking criticism or satire, but are, rather, seemingly hypersensitive to almost anything non-Muslims say of them.

The only conclusion one can draw from this is that the UN Human Rights Council Resolution 16/1 seems to have influenced Congress. Do not forget that the OIC is the only international religious body to have campaigned ceaselessly for legislation to protect believers of Islam from physical and verbal abuse, with verbal abuse determined according to shari'a principles rather than the traits of international or national democratic values.

In Great Britain, a landmark judgement was passed on January 5, 2016, in a court in Belfast, Northern Ireland, when a judge ruled that evangelical pastor James McConnell was not guilty of hate speech directed at Muslims. McConnell had been arrested last May after remarks during a sermon about Islam at his church. In his sermon, he had spoken of Islam as "satanic," "heathen" and "a doctrine spawned in hell." These may be sentiments with which most of the world would not agree, but entirely within the bounds of evangelical Christian theology, not least in that frequently bigoted region of fundamentalist, belief, where even the majority of fellow Christians are despatched to hellfire, with Catholics at the bottom of the heap. It is also not that different from what many Muslim clerics say about Jews and others.

As his sermon had been posted online, McConnell was charged under the Communications Act 2003 of making improper use of a public electronics communications network and of causing a grossly offensive message through those channels. But even though the judge found his remarks offensive, he was exonerated and walked out of a court a free man.

In Europe, criticisms of Islam have been met with a range of penalties. Individuals have been prosecuted and sometimes been found guilty of "Islamophobic" speech or writing -- notably Elizabeth Sabatisch-Wolff and Susanne Winter in Austria, Geert Wilders and Gregorious Nekschot in the Netherlands, Lars Hedegaard and Jesper Langballe in Denmark, Michel Houellebecq and Brigitte Bardot in France, Oriana Fallaci in Italy, and others elsewhere. Some have been exonerated, others jailed or fined. Pastor McConnell has been fortunate in avoiding jail. So far the UK has been tolerant, but further trials -- very often for what really amounts to nothing more than blasphemy as perceived by Muslim groups or individuals -- are very likely. Today, more than ever, there are forces at work that seek to make these prosecutions a certainty, not just in Europe, but in the United States, Canada, and other countries in the West.

The threat to freedom of speech a comes mainly from one quarter: an international body known as the Organization of Islamic Cooperation (OIC). In recent years, one of the core activities of the OIC has been repeated attempts to introduce via the United Nations Human Rights Council a law forbidding any form of blasphemy, criticism, or negative comment, especially about the Islamic religion. To understand this, it is important to note that, from the time of the prophet Muhammad to the present day (and more strongly within modern radical Muslim movements), the Islamic religion has been predicated on a call for domination over all other religions and political systems. Here, for example, are some explicit expressions of that demand in radical websites: a YouTube video and a website linked to the British extremist, Omar Bakri Muhammad.

In the video, Omar Bakri declares "We must live by and make a domination and die (?) on in our da'wa (missionary work) and jihad in order to spread it [Islam] all over. The video page is entitled "Proclaim openly for Izharudeen", meaning "proclaim openly for making the faith victorious over all others," and displays a photograph of several Muslims carrying placards declaring "Islam will dominate the world: Freedom go to hell. A website publishing extracts from the classical Qur'an commentary of Ibn Kathir is headed with the words: "Islam is the Religion that will dominate over all Other Religions" and below that cites a Qur'anic verse declaring that God will "make it [Islam] victorious over all religions" before quoting several traditions declaring the same thing in various formulations. Finally, a Facebook page titled "In sha Allah, Islam will dominate the world" from which several more sites with the same statement are revealed below the main heading.

Islamic policy from the time of the seventh-century Arab conquests through the later empires was to set Muslim rulers above native populations, even if at first Muslims were in a minority. Pagans could choose to convert or die, but Jews, Christians, and before long Zoroastrians, were treated (under the oppressive terms of the Pact of 'Umar) as dhimmi people, forced to pay a protection tax, the jizya, in order to preserve their lives and property. There were different laws for people of a different religion, in addition to numerous restrictive conditions for dhimmis, including these:
We shall not build, in our cities or in their neighborhood, new monasteries, Churches, convents, or monks' cells, nor shall we repair, by day or by night, such of them as fall in ruins or are situated in the quarters of the Muslims.
We shall keep our gates wide open for passersby and travelers. We shall give board and lodging to all Muslims who pass our way for three days.
We shall not give shelter in our churches or in our dwellings to any spy, nor bide him from the Muslims.
We shall not teach the Qur'an to our children.
We shall not manifest our religion publicly nor convert anyone to it. We shall not prevent any of our kin from entering Islam if they wish it.
We shall show respect toward the Muslims, and we shall rise from our seats when they wish to sit.
We shall not seek to resemble the Muslims by imitating any of their garments, the qalansuwa, the turban, footwear, or the parting of the hair. We shall not speak as they do, nor shall we adopt their kunyas [honorific name derived from one's eldest child, such as Abu, father of]
We shall not mount on saddles, nor shall we gird swords nor bear any kind of arms nor carry them on our persons.
We shall not engrave Arabic inscriptions on our seals.
We shall not sell fermented drinks.
We shall clip the fronts of our heads.
We shall always dress in the same way wherever we may be, and we shall bind the zunar [a kind of belt] round our waists
We shall not display our crosses or our books in the roads or markets of the Muslims. We shall use only clappers in our churches very softly. We shall not raise our voices when following our dead. We shall not show lights on any of the roads of the Muslims or in their markets. We shall not bury our dead near the Muslims.
We shall not take slaves who have been allotted to Muslims.
We shall not build houses overtopping the houses of the Muslims.
A Muslim, under shari'a regulations, cannot be brought to trial or punished for killing a non-Muslim.[2]

Given this classic formulation, it is easy to see that non-Muslims living in Islamic states or empires risked their lives should they say anything whatever detrimental to Islam, considered insulting to the prophet, or thought derogatory of the Qur'an, the Hadith, shari'a law or the Muslim clerical elite.

This attitude -- that no-one is permitted to speak ill (however that be defined) of Islam or its many elements without facing condign punishment (which includes death even for Muslims who are deemed to have crossed the lines of offense and have thereby become "apostates") -- has in the past placed enormous restrictions on what may be said or written about the religion. These restrictions did not matter in the least to anyone living in a Christian country, where there was little likelihood of retaliation from Muslims. But today most Western countries have large Muslim populations, and relations between the West and the Islamic world are carried out on the world stage. The riots, assassinations, and death threats that followed Ayatollah Khomeini's fatwa [religious legal opinion] in 1989 to kill the British writer, Salman Rushdie, for his novel, The Satanic Verses, were indicative of a new direction.

Since the Enlightenment, open debate and free speech have been enshrined in the laws and practices of all democracies. It is central to the American way of life since the 1791 first amendment to the U.S. Constitution, which also guarantees freedom from religious coercion. To Westerners -- both legislators and the general public -- freedom of speech (and writing) seems axiomatic as a basic human right. But for Muslims, human rights are very differently understood. Again and again, when Muslim individuals and organizations have released documents to define Islamic human rights, in each instance, all rights are restricted to those given by God and are subject to the phrase "according to the Shari'a."[3] One of the best known statements of this kind is the 1990 Cairo Declaration of Human Rights in Islam. Its last two articles read thus:
All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari'ah.

The Islamic Shari'ah is the only source of reference for the explanation or clarification of any of the articles of this Declaration.

In the present context, Article 22 is also of particular interest:
(a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah.
1. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah.
(c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith.
(d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination.

It is on the basis of this attitude to human rights, including the supposed right to express one's opinion freely, that the Organization of Islamic Cooperation has tried many times to introduce legislation within the United Nations that controls free speech in accordance with the demands of shari'a. The OIC has advocated bans on the "defamation of religion" in general, but in reality, it is defamation of Islam that matters. In Geneva, from 19 to 30 October 2009, the Ad Hoc Committee of the Human Rights Council on the Elaboration of Complementary Standards met to update the measures for combating racism, racial discrimination, xenophobia, and related intolerance that the Durban I conference had formulated. During the discussion, the United States, Sweden and France all agreed that legal protection could not be provided for systems of belief or religions. However, the Syrian delegate stated clearly that "in real terms defamation means targeting Muslims".

What is deemed to be defamatory is, of course, hugely restrictive, whether it be in the form of a novel, a cartoon, or even an academic study. As experience has shown, nothing is off limits.

Between 1999 and 2010, several Muslim states, at the instigation of the OIC and supported by a range of Third World countries, introduced resolutions at the UNHRC on "the defamation of religion" no fewer than 16 times. Initially, these resolutions were passed by majority votes, with delegates from Muslim states and developing countries supporting them. Western states for the greater part opposed them on the grounds that they threatened to restrict free speech. As time passed support for the resolution began to weaken. In 2009, for example, no fewer than 200 civil societies from 46 countries urged the UNHRC to reject an upcoming resolution on the subject.

In the same year, during the debate on another resolution, the European Union's delegate, Jean-Baptiste Mattei, declared that the EU "rejected and would continue to reject the concept of defamation of religions." He went on to say that "human rights laws did not and should not protect belief systems." In the same debate, Carlos Portales from Chile noted that "the concept of the defamation of religions took them in an area that could lead to the actual prohibition of opinions." However, the UNHRC adopted the resolution -- without taking a vote.

Again, in 2010, Pakistan introduced a resolution "Combating the defamation of religion" on behalf of the OIC. Once more Jean-Baptiste Mattei opposed it. He argued that the "concept of defamation should not fall under the remit of human rights because it conflicted with the right to freedom of expression." The U.S ambassador, Eileen Donahoe, declared with great clarity that
"The United States will vote against this resolution because we view it as an ineffective way to address these concerns. We cannot agree that prohibiting speech is the way to promote tolerance, and because we continue to see the 'defamation of religions' concept used to justify censorship, criminalization, and in some cases violent assaults and deaths of political, racial, and religious minorities around the world. Contrary to the intentions of most Member States, governments are likely to abuse the rights of individuals in the name of this resolution, and in the name of the Human Rights Council."
Despite these many resolutions, members of the OIC were possibly starting to see that they were getting nowhere and that opposition to their attempt to introduce a ban on free speech through the back door was growing. They had to find a formula that would deflect criticism and win the support of Western states for whom freedom of speech was a non-negotiable condition. The answer was simple yet immensely effective. Instead of a focus on the protection of beliefs, why not stress the need to protect individual believers? On March 24, 2010, the UNHRC adopted (again without a vote) Resolution 16/18, entitled "Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion and belief."

Overnight, everyone was playing a totally different ball game. Who could refuse to support a resolution with a title like that? The OIC had, as it were, slipped past customs checks and delivered something which apparently no one could reject.

A meeting was convened on July 15, 2011, hosted by the Organization of Islamic Cooperation at the OIC Istanbul Office in the Yildiz Palace. The affair was co-chaired by OIC Secretary-General H.E Prof. Ekmeleddin Ihsanoglu; U.S. Secretary of State Hillary Clinton; the Secretary General of the Organization of Islamic Cooperation, and the EU High Representative for Foreign Affairs.[4] The OIC was home and dry, backed by just about everyone who had previously expressed concern about its plan. A joint statement was released, calling for international support for Resolution 16/18.[5]

Resolution 16/18 has since become the gold standard according to which the international community may identify religious hatred, stereotyping, or incitement to hatred on racial or religious grounds. Understood in terms of international human rights law as expressed in the Universal Declaration of Human Rights, the thrust of the resolution appears unimpeachable. It is hard, if not impossible, openly to disagree with it in that context without seeming opposed to such rights.

There are, in fact, serious grounds for concern. These relate in part to the 1966 International Covenant on Civil and Political Rights, which entered into force ten years later, in 1976. This lengthy and important expression of human rights re-asserted the fundamental prescriptions of the Universal Declaration of Human Rights. The rights it demands include:
  • physical integrity, in the form of the right to life and freedom from torture and slavery (Articles 6, 7, and 8);
  • liberty and security of the person, in the form of freedom from arbitrary arrest and detention and the right to habeas corpus (Articles 9 – 11);
  • procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition as a person before the law (Articles 14, 15, and 16);
  • individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family rights, the right to a nationality, and the right to privacy (Articles 12, 13, 17 – 24);
  • prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutes incitement to discrimination, hostility or violence by law (Article 20);
  • political participation, including the right to the right to vote (Article 25);
  • Non-discrimination, minority rights and equality before the law (Articles 26 and 27).
Unexpectedly, the International Covenant came to play a role following the passage of UNHRC Resolution 16/18. Four months after the passage of the, the UNHRC itself adopted General Comment 34 on the International Covenant with respect to freedoms of opinion and expression. The Comment places strong emphasis on the importance of those freedoms. Paragraph 48 declares that:
"Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favor of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith."
These cautions certainly restrict the application of the OIC-instigated Resolution 16/18 from a Western human rights perspective. Viewed from that perspective, Resolution 16/18 is, at heart, hypocritical. On the surface, it makes it seem that the OIC has adopted a Western approach to human rights. In fact, it has not. Hidden from many people, including, I am sure, most of the Western members of the UN Human Rights Council is the OIC's real position on human rights. It relies solely on Islamic legal prescriptions to determine what is and what is not a right. This is easy to see.

On its own website, the OIC publishes the full text and advocates the use of the Cairo Declaration mentioned above as the basis for its actual understanding of such rights. However, as all rights under the Cairo Declaration are declared subject to shari'a laws, this can only mean that the OIC regards the Western interpretation of Resolution 16/18 as invalid. If we then add that the freedoms of opinion, speech, and other expression are nowhere permitted within the Islamic world and are often punished in countries such as Saudi Arabia, Iran, Bangladesh, Pakistan, Sudan and elsewhere by imprisonment, flogging, and execution, one does have to question the sincerity of the OIC in promoting freedoms that it nowhere actually recognizes.

In theory, Jews, Christians, Sikhs, Hindus, Baha'is and some other religious communities will resort to the terms of the resolution when they are genuinely applicable to cases of being demonized and subjected to real incitement to violence. Unfortunately, for many years now we have seen that, in reality, it is most often Muslims who try to use anti-hate legislation to condemn perfectly reasonable criticism, satire, attempts to question shari'a, or to protest Islamic extremism. Resolution 16/18 will very likely assist many Muslims in bringing even more prosecutions against non-Muslim critics or even against moderate Muslims who oppose much that is done in the name of Islam.

There are, indeed, signs that Resolution 16/18 may already be bringing its influence to bear in some democratic states, not least that former bastion of free speech, the United States.

Our natural concern for the protection of the weak and vulnerable, a concern rooted in Western Judaeo-Christian and Enlightenment values, makes it easy for legislators from different political positions to sign a document such as the US Congress H.Res. 569. They may not have seen the hidden implications of their attempt to render it illegal to offend (as defined by Muslims) the members of just one religion. The legislators may not even have seen the exceptionalism granted to Muslims but to no other religious community.

Given the existence of the First Amendment, the United States remains capable of resisting attacks on free speech and expression. It would be regrettable if H.Res. 569 could prove to be a Trojan Horse, just as was Resolution 16/18.

Legislation such as H. Res, 569 would not only end America's long tradition of free and open debate; worse, it would reverse the protection of the First Amendment.
Denis MacEoin is a scholar of Islam and a Distinguished Senior Fellow at the Gatestone Institute.

[1] S.Res. 148 (also dated December 17, 2015) "Condemns the government of Iran's state-sponsored persecution of its Baha'i minority and its continued violation of the International Covenants on Human Rights." It was preceded by H.Res. 220 of May 20, 2015.
[2] See Ahmad ibn Naqib al-Misri, 'Umdat al-salik, trans. Nuh Ha Mim Keller as Reliance of the Traveller, Amana, Maryland, rev. ed. 1994, p. 584 o1.2 (2).
[3] A comprehensive, scholarly and eye-opening survey of these documents may be found in Ann Elizabeth Mayer's Islam and Human Rights. For a broader discussion of the many issues involved, see the essays in International Law and International Human Rights Law.
[4] Others attending the meeting included foreign ministers and officials from Australia, Belgium, Canada, Denmark, Egypt, France, Germany, Italy, Japan, Jordan, Lebanon, Morocco, Pakistan, Poland, Romania, Senegal, Sudan, United Kingdom, the Vatican (Holy See), UN OHCHR, Arab League, and African Union.
[5] "Participants resolved to... reaffirm their commitment to freedom of religion or belief and freedom of expression by urging States to take effective measures, as set forth in Resolution 16/18... to address and combat intolerance, discrimination, and violence based on religion or belief.... Participants are encouraged to consider to provide updates... on the elimination of religious intolerance and discrimination."

Denis MacEoin is a scholar of Islam and a Distinguished Senior Fellow at the Gatestone Institute.


Copyright - Original materials copyright (c) by the authors.

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