In a well-ordered society, not only must all people be protected by the law; they are entitled to live in confidence of this protection. Each person should be able to go about his or her business, with the assurance that there will be no need to face hostility, violence, discrimination or exclusion by others. Hate speech undermines this essential public good. Even when the hate speech comes from isolated fringe elements, themselves despised by a majority of the public, we should not regard the harm as insignificant. The UN International Covenant on Civil and Political Rights obliges state parties to prohibit any advocacy of religious hatred that constitutes incitement to discrimination or violence. It provides that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Accordingly, this provision does not appear to codify a fundamental right but rather a sui generis state obligation.
Racism has climbed the political agenda at national and international levels. The recent incident in Norway where a miscreant and reprobate Lars Thorsen, a leader of an anti-Islam group ‘Stop Islamisation of Norway (SIAN)’, set fire to a copy of the Quran in the Norwegian city of Kristiansand. Although the government of Norway has banned desecration of Holy Quran and warned that strict action would be taken if such incidents happened again, yet it highlights the height of racism and religious hatred has achieved in Europe. Reports from national and international non-governmental organisations (NGO’s) and inter-governmental organisations have focused considerable attention on racism and xenophobia and document an increase in racism, xenophobia, anti-Semitism and race-related activities.
The current challenges posed by religious hatred across the globe have prompted the need to better understand the evolution of the right to be free from the harm of hate speech as codified within Article 20(2) of the International Covenant on Civil and Political Rights. Martin Luther King once purported that, ‘like an unchecked cancer, hate corrodes the personality and eats away its vital unity. Hate destroys a man’s sense of values and his objectivity’.
The contribution that is made by international law to religion is in the form of universalistic norms protecting religious diversity. Such rules are to be found in early modern treaties such as Westphalia ending the Thirty Years War in 1648 and Vienna ending the Napoleonic Wars in 1815, however, the modern period of international guarantees, often violated, of religious freedom was guaranteed by Article 22 of the League of Nations Covenant after the First World War.
The European Court of Human Rights (ECtHR)
The European Court of Human Rights (ECtHR) serves as the regional human rights enforcement mechanism for the 47 signatories to the European Convention on Human Rights (ECHR).Article 10 Section 1 of the ECHR guarantees the freedom of expression―without interference by public authority, in contrary Section 2 of the same article states that this freedom is ―subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society… Although The US. Constitution considers freedom of speech as a paramount right, on the contrary, the European model considers it merely as one right that must be weighed against other democratic rights.
The decisions of the European Court that came into force in April 2010 are binding on the member states in judgments to which they are parties. This new protocol strengthened the enforcement abilities of the European Court. Several decisions have come out of the European Court concerning the intersection of freedom of speech and incitement to racial and religious hatred, including two cases which illuminate the boundary between what is acceptable and unacceptable speech, as determined by the ECHR.
Applying Article 10 to Quran burning, the European Court is likely to find that a state is within its rights to restrict such an act. Quran burning is proscribed in the domestic laws of many member states. Those laws comport with the goals listed in Article 10 Section 2 because, arguably, they protect ―the interests of national security by limiting violence against nationals, both in country and in military theaters, like Iraq and Afghanistan. They protect ―the rights of other by limiting violent demonstrations aimed squarely at one sector of society: Muslims. Furthermore, like in Giniewski, Quran burning is likely to be considered violence, so the European Court should broadly construe its responsibility to intervene.
ICCPR, is an international agreement that names all civil and political rights enjoyed by the citizens of its member states, including freedoms of speech. It is unique because no single designated court adjudicates this convention.Article19oftheICCPRguarantees freedom of expression in general, but Article 20 proscribes war propaganda and ―any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Under Art 19(3) of the ICCPR, restrictions on free speech must satisfy three criteria: they must be provided by law; they must be based on permissible grounds (including the protection of rights or reputation of others and the protection of public order); and must be necessary to achieve a legitimate aim (which involves a proportionality analysis).
The ICCPR clearly illustrates the difference in the American and European approaches to the issue of speech protection. Essentially, European law declines to subscribe to the principle of content neutrality, the idea that speech cannot be restricted based on the substance of a message. By qualifying speech freedom so dramatically in Article 20, the drafters of the ICCPR weaken the ―value judgment in Article 19 that freedom of speech is an important individual right that should be protected, thereby declaring that some ideas are so harmful that they should not be protected.
Moreover, Article 4 of The Committee on the Elimination of Racial Discrimination (CERD) provides that measures designed to suppress hate speech need to be implemented with ‘due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention’. It is generally accepted that no area of human rights is so distant from a meaningful international consensus as the right to religious diversity, despite the fact that the rights to religious freedoms enshrined in these important international instruments. Furthermore, virtually there is no effective universal supervision of international rights to religious diversity. There is, however, a regional exception in European human rights law. For example, Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms guarantees the right to freedom of thought, conscience, and religion. Despite the fact that Article – 9 contain the right and freed of religion, however, Article 9 has been applied, albeit less often and less forcefully, by the European Court of Human Rights in Strasbourg compared to the other parts of European convention.
Therefore, it can be concluded that there are mechanism to bring the perpetrator of hate speech to justice but it all depends on the willingness and the racial conscious of the state. The Quran burning is a regular occurrence but is being neglected by the European nations.
The Kristiansand incident lays bare the ugly face of Islamophobia
Recently, in brazen act of religious impertinence, a provocateur infected with the common pathogen of Islamophobia, Lars Thorson, who is the head of Norway’s extreme right-wing group ‘Stop the Islamisation of Norway (SION)’ tried to desecrate Holy Quran in Norway. Meanwhile, a Muslim Youth Muhammad Ilyas Umer jumped into the barricaded circle to save the holy book from being desecrated and launched kicks at the SION head. Ilyas succeeded in stopping the Islamophobe from burning the holy script completely but got arrested at the spot by the police.
The continuous provocation of sacred Islamic personalities or the holy book is evidence of the western radicalism but it is not termed as that while any violent incident happening is investigated with the bias that it may be an Islamic zealot. The latest incident is an evidence of that. This is a clear evidence of Western extremism but nobody dare call it so. Islamophobia is perpetuated by negative stereotypes resulting in bias, discrimination, and the marginalization and exclusion of Muslims from social, political, and civic life. The western media through their global reach spread fear and hatred by:
- Splashing tabloid politics: Bearded men and veiled women have been made villains. All pictures on newspapers and social media show these gun-trotting men with long beards with blood-stained hands. While this image is rampant this segment is a tiny minority of the 1.6 billion Muslim population. What about gun-trotting violence being carried out in schools and universities in the US quite frequently. This month alone two shootings have happened resulting in deaths of scores of young students.
- Half-Baked Figures: Every think-tank in the US will be hiring scores of Asian and Western scholars to do research on violence and extremism in Pakistan and its root causes. These figures may be correct. As a five-year analysis showed that over 5,000 people had died in violence-related incidents in Pakistan. What they do not show is that in the US at the same time, over 50,000 people died due to gun violence. Also, most surveys show that religious extremism has risen much faster in India than in Pakistan in the last five years but the perception is contrary.
- Varying Standards: Freedom of expression right is wrongly used. Disrespecting holy figures is considered freedom of expression while curbing the right to wear head-gear is not freedom of choice. The Niqab ban in France has totally exposed the Western double standards and is creating a reaction in Muslim countries that sometimes results in uncontrollable consequences.