Defamation of Religion: Rumors of Its Death are Greatly Exaggerated

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 — and 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 ensuing human rights violations on the ground.After briefly considering the history of defamation of religion at the UN and the strategies employed by its principal proponent, the Organization of Islamic Cooperation (“OIC”), 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 new international consensus around “combatting 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 statements, resolutions, and other undertakings of the OIC and its member states with a particular emphasis on activities that follow the adoption of Resolution 16/18.Based on this analysis, the Article concludes that the resolutions on combatting intolerance passed in 2011 represent a Clausewitzian moment for many governments, particularly among OIC member states. Essentially, support for the new international consensus on combatting 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 combatting 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.