A/HRC/12/38
page 12
35. The three mandate holders acknowledged that there had been, in recent years, challenges
with regard to the dissemination of expressions offending certain believers. This was not a new
phenomenon and had historically concerned countries in all regions of the world and various
religions and beliefs. The events of 11 September 2001 had, however, exacerbated tensions in
intercommunity relations. In that context, the three mandate holders suggested that a clear
distinction be made between three types of expression: (a) expressions that constitute an offence
under international law; (b) expressions that are not criminally punishable but may justify a civil
suit; and (c) expressions that do not give rise to criminal or civil sanctions but still raise a
concern in terms of tolerance, civility and respect for the religion or beliefs of others. They
nonetheless strongly emphasized that freedom of expression and the demands of a pluralist,
tolerant, broad-minded and democratic society needed to be taken into consideration in all cases
being examined. Freedom of expression has to be understood in the positive sense. The
guarantee of freedom of expression equally for all constitutes a form to combat racism and
discrimination. The three experts added that there was a need to generate, with the exercise of
freedom of expression, an atmosphere of respect and understanding between peoples, cultures
and religions.
36. Whereas the debate concerning the dissemination of expressions offending certain
believers had, throughout the years, evolved around the notion of “defamation of religions”, the
three mandate holders welcomed that the debate seemed to be shifting to the concept of
“incitement to racial or religious hatred”. They recalled the difficulties in providing an objective
definition of the term “defamation of religions” at the international level, which makes the whole
concept open to abuse. At the national level, domestic blasphemy laws can prove
counterproductive, since this could result in de facto censure of all inter- and intra-religious
criticism. Indeed, many of these laws afford different levels of protection to different religions
and have often proved to be applied in a discriminatory manner. The three experts mentioned
that there were numerous examples of persecution of religious minorities or dissenters, but also
of atheists and non-theists, as a result of legislation on religious offences or overzealous
application of laws that are fairly neutral.
37. Whereas some had argued that “defamation of religions” could be equated to racism, the
three Special Rapporteurs cautioned against confusion between a racist statement and an act of
“defamation of religion”. In this regard, they fully concurred with the affirmation from the
International Convention on the Elimination of All Forms of Racial Discrimination that “any
doctrine of superiority based on racial differentiation is scientifically false, morally
condemnable, socially unjust and dangerous”. However, there is not necessarily an analogy to be
drawn with regard to religious issues. Indeed, several religions are characterized by truth claims or even by superiority claims - which have been traditionally accepted as part of their theological
grounds. Consequently, the elements that constitute a racist statement may not be the same as
those that constitute a statement “defaming a religion” as such. To this extent, the legal
measures, and in particular the criminal measures, adopted by national legal systems to fight
racism may not necessarily be applicable to “defamation of religions”.
38. The three experts deemed it necessary to anchor the debate on these issues in the relevant
existing international legal framework, provided for by the International Covenant on Civil and
Political Rights. Whereas the Covenant provides for freedom of expression, it also clearly
defines limitations to it, for example in articles 19 and 20. Furthermore, article 20, paragraph 2,
of the Covenant requires States to prohibit expressions if they amount to advocacy of national,
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