ARTICLE 19 welcomes, for the fifth consecutive year, the adoption by consensus at the UN Human Rights Council (HRC) of the resolution on ‘combating intolerance, negative stereotyping and stigmatisation of, and discrimination, incitement to violence, and violence against persons based on religion or belief’.
This is the follow-up to the landmark 2011 resolution 16/18, which established a framework for addressing discrimination and violence through positive policy action targeting the root causes of this phenomenon, including by opening space for dialogue and discussion.
However, we reiterate that implementation of the action plan laid out in the resolution is essential to the countering and prevention of violence and discrimination on the basis of religion or belief. As outlined in the OHCHR’s Rabat Plan of Action, this requires the mobilisation of all stakeholders to bring national laws, policies and practice in line with international human rights law. Crucially, this also necessitates the repeal of blasphemy laws.
Consensus on resolution 16/18 will only deepen if the Istanbul Process is re-energized as a practical, inclusive, and cross-regional forum for exchanging national experience and best practices in addressing the root causes of violence and discrimination.
This must be supported by reporting to OHCHR by states on implementation, to demonstrate that consensus is not merely a compromise, but a collective basis for addressing violence and intolerance, which remains a global concern. Both are essential if consensus around 16/18 is to be maintained.
Ahead of the 31st Session, ARTICLE 19 developed a short briefing in English and French outlining the significance of resolution 16/18, detailing the elements of the action plan it contains, and the importance of its implementation.
The value of resolution 16/18 and the Rabat Plan of Action
Resolution 16/18, adopted in March 2011, is often touted as one of the greatest achievements of the HRC’s first decade: it provides a bridge between polarised views on how to effectively address discrimination and violence based on religion or belief. The resolution gives states and other stakeholders a consensus-based approach from the UN to tackle the root causes of intolerance through promoting the closely interrelated rights to freedom of expression, freedom of religion or belief, and non-discrimination.
The resolution’s eight-point action plan places unique emphasis on implementation, primarily through positive measures aimed at increasing inter-group communication, reserving limitations on expression to a narrow and exceptional category of “incitement to imminent violence based on religion or belief” (paragraph 5(f)). This is important, as the plan leaves behind divisive calls for states to combat “defamation of religion”, affirming that it is people and not abstract religions or beliefs that enjoy protection under international human rights law.
Uniquely, the Istanbul Process has emerged as a regular inter-state meeting, outside of the formal structures of the HRC, to encourage and guide implementation through dialogue and practical experience sharing. This is supplemented by formal reporting to OHCHR (see A/HRC/28/47, 19 January 2015), with the next report due ahead of the 34th Session of the HRC in 2017.
Every year since 2011, the HRC has adopted follow-up resolutions to 16/18 by consensus, most recently at the conclusion of the HRC’s 31st Session on 23 March 2016. Each of the more recent resolutions positively reference the OHCHR’s Rabat Plan of Action. This provides authoritative legal and practical guidance on implementing States’ obligation under Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR) to prohibit “any advocacy of national, racial or religion hatred that constitutes incitement to hostility, discrimination or violence”.
The crux of the Rabat Plan is that, as a default, more expression, coupled with policies and laws to tackle the root causes of discrimination, should be the primary response to intolerant expression. It acknowledges that freedom of expression is not absolute, but that restrictions serve a limited role to address harmful speech, as a last resort, warning that improperly applied these measures are counterproductive.
A six-part threshold test assists states, in particular judicial bodies, in identifying where “hate speech” reaches the level of severity that would make restrictions both necessary and proportionate, in line with the requirements of Article 19(3) of the ICCPR. This does not imply that leaders or other actors stay silent or inactive when confronted with “hate speech”, but there are more effective and proportionate means to address discrimination by opening space for counter-speech.
Importantly, the repeal of restrictions that do not comply with international human rights law, including prohibitions on blasphemy, is essential to the opening of this space.
The 31st Session of the HRC
Entering the 31st Session of the HRC, ARTICLE 19 emphasized in an in-depth analysis for Universal Rights Group the importance of maintaining consensus on and implementing resolution 16/18, and engaged in an EU-hosted half-day panel discussion on making the best use of existing frameworks to combat religious intolerance.
We therefore warmly welcome the adoption by consensus at this Session of the resolution on ‘combating intolerance, negative stereotyping and stigmatisation of, and discrimination, incitement to violence, and violence against persons based on religion or belief’. The resolution was tabled by Pakistan on behalf of the Organisation of Islamic Cooperation and Turkey, and cosponsored by Australia.
The resolution was a technical update on its predecessor, HRC resolution 28/29, simply adding reference to the 6th Istanbul Process meeting hosted by the OIC in Jeddah in June 2015. The substance of the resolution, most importantly its in-built action plan, remains unchanged, along with references to the importance of the Rabat Plan of Action. It calls for States to submit information on implementation, as well as ideas on improving implementation, to OHCHR ahead of the 34th Session in March 2017.
ARTICLE 19 also welcomes the adoption by consensus of the EU-led resolution on freedom of religion or belief, renewing the Special Rapporteur mandate for three more years. This paves the way for the appointment of a new mandate holder at the 32nd Session in June 2016.
Also at the 31st Session, the final report of the outgoing Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, provided normative and practical guidance to States and other stakeholders in implementing resolution 16/18. In an oral statement to the HRC welcoming the report, ARTICLE 19 underscored Heiner’s conclusions that addressing the root causes of discrimination requires opening space for dialogue and dissent, including by repealing laws that restrict free expression and civil society space.
Reactions to the report from the vast majority of States demonstrated increased acceptance that promoting the freedoms of religion or belief and expression is essential to tackle discrimination and violence. This shows the impact of Heiner Bielefeldt’s sustained and principled attention to this issue in his six years as special rapporteur. Nevertheless, outstanding opposition to this position, albeit from a minority of States, demonstrates that his successor must ensure that attempts to roll back international standards in this area are strongly resisted.
Addressing the implementation gap
Discriminatory hatred and violence will only be prevented and countered if the closely related freedoms of expression and religion or belief are promoted and protected. Though maintaining consensus on resolution 16/18 is crucial, the test remains in the implementation of its political commitments at the national level.
At a side event on this issue hosted by ARTICLE 19 at the HRC, key stakeholders discussed how to enhance implementation of resolution 16/18. The event was productive, and we summarise the main conclusions here.
It is essential that states lead by example and take action to address the root causes of violence and discrimination at the national and local levels. As Heiner Bielefeldt has emphasised, this requires political will and imagination. States must refrain from censorship as a simplistic and counterproductive response to violence and discrimination, but instead reform laws and policies to give civil society space to foster open dialogue, engage in dissent, and deliver grassroots change. ARTICLE 19 is supporting local and national level pilot programming to engage key stakeholders to open this space and close the implementation gap.
Exchanging practice on this implementation, informing and engaging grassroots actors on this initiative, and feeding back all efforts to the UN, is also an institutional challenge for the HRC.
The Istanbul Process is not fulfilling its potential: there is a need for greater focus on the exchange of best practice by practitioners. For this, inclusive participation must be made systematic. There must be a greater diversity of states from all regions, as well as civil society from the international, regional and national levels, including religion or belief leaders, and the media. National human rights institutions, as stakeholders in themselves, and as a bridge between stakeholders, should also be given a central role. There must be greater representation of women, and of religious or belief minorities, than seen at previous Istanbul Process meetings.
Reporting on implementation to OHCHR must also be enhanced. The previous report (March, 2015) only received 15 responses from States. Though the need for annual reporting on the resolution as a whole could be revisited, increased input to the OHCHR report next March will be an important opportunity to show continued support for consensus. This would be enhanced if a broader range of stakeholders, including national human rights institutions and civil society, were encouraged to make submissions to future reports.
Lastly, we must remain cognisant of normative challenges at the HRC, where ideological divisions continually threaten to reassert themselves and undo recent progress. In this climate, a small minority of States exploit the fragility of consensus on resolution 16/18 to oppose progressive standard-setting in other initiatives, in particular the parallel resolution on freedom of religion or belief. All states must ensure that neither initiative is held hostage in this manner, as it distracts the HRC from its mandate and ultimate purpose, which is to be a platform for action against the world’s worst human rights violations and abuses.
ARTICLE 19 calls on States to refocus their attentions on promoting and protecting for all people, without discrimination, the closely related freedoms of expression and religion or belief, in line with resolution 16/18 and the Rabat Plan of Action.