College of Law Faculty Scholarship

Defamation of Religion: Rumors of Its Death are Greatly Exaggerated

Source Publication (e.g., journal title)

Case Western Reserve Law Review

Document Type

Article

Publication Date

January 2011

Abstract

This Article explores the recent decisions by the United Nations (“UN”) Human Rights Council and General Assembly to adopt consensus resolutions aimed at “combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief.” These resolutions represent an effort to move past a decade’s worth of contentious roll call votes in favor of prohibiting defamation of religion within the international human rights framework. Although labeled “historic” resolutions, this Article argues that the UN’s new compromise approach endorsed in 2011 — motivated in part by the desire to end years of acrimonious debate over the acceptability of shielding religious beliefs from insult and criticism — is problematic because it risks being exploited to sanction the continued prohibition on defamation of religion and perpetuation of human rights violations on the ground.

After briefly considering the history of defamation of religion at the UN and the strategies employed by its proponents, this Article turns to an assessment of the UN Human Rights Council’s 2011 consensus Resolution 16/18. In light of the resolution’s objectives, this Article explores the viability of the international consensus around “combating intolerance” and tests to what extent, if any, the concept of defamation of religion may be waning in practice. To this end, this Article weighs, among other things, statements and resolutions of the Organization of Islamic Cooperation (“OIC”) pertaining to defamation — particularly those issued following the adoption of Resolution 16/18 — as well as its activities in other UN bodies.

Based on this analysis, the Article concludes that the resolutions on combating intolerance passed in 2011 represent a Clausewitzian moment for many governments, particularly among OIC member states. Essentially, support for the new international consensus on combating intolerance represents a cynical and strategic decision to continue the campaign to legitimate a ban on defamation of religion by other means. Accordingly, even if defamation of religion per se is on hiatus from the UN, absent additional measures — including a decisive repudiation of the concept’s validity — further international efforts to implement measures for combating intolerance risk enabling an alternative framework in which governments continue justifying, in the name of protecting religious belief, domestic measures that punish the exercise of freedom of expression and freedom of thought, conscience, and religion or belief.

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