Sejal Parmar. Human Rights Law Review. Volume 18, Issue 2. June 2018.
An assault on freedom of expression shattered the world’s consciousness at the start of 2015 and its effects have been felt ever since. The shootings at the offices of the magazine Charlie Hebdo and at a kosher supermarket in Paris on 7 January of that year, which left eight journalists and nine others dead, drew global attention, sparking reactions from political leaders and media commentators, and the renewal of a global public debate around the acceptable limits of freedom of expression. In their immediate aftermath, the attacks also prompted an outbreak of violence across the Middle East and inspired shootings at a free speech event and a synagogue in Copenhagen barely a month later. Those exercising freedom of expression for a living or defending it by conviction—such as journalists, cartoonists and free speech advocates—suddenly seemed more vulnerable to physical attack than at any other time in recent history. Through the assault, several growing global trends concerning the ‘practitioners’ of freedom of expression—attacks against journalists and media workers, legal and extra-legal restrictions on satirists (including cartoonists and comedians) and violence ‘committed in the name of religion’—seemed to converge, marking ‘a new and sinister step in the escalating conflict between faith and free expression’. The fact that the attacks took place in the liberal heartland of Europe, in France, seemed to make them especially stunning. In the three years since the attacks, the Charlie Hebdo ‘episode’ has become a cleavage point in terms of terrorist violence in the ‘West’ and also the nature of states’ policy responses: subsequent deadly attacks in Europe, particularly France and the United States of America, have frequently been traced back to those in Paris in January 2015; and states’ responses to such violence and the radicalisation that is assumed to underpin it appears to embed a paradigmatic shift towards ‘preventing’ or ‘countering violent extremism’. At the beginning of 2017, a new challenge to freedom of expression surfaced with a declaration of ‘war’ on the media by President Donald Trump, who has labelled journalists as ‘among the most dishonest beings on earth’.
This article considers the significance of the Charlie Hebdo attacks and responses to them from the perspective of international human rights law on the freedom of expression. It focuses on the recent positions taken by international human rights bodies, including in direct response to the attacks, whilst acknowledging their normative bases. As part of ongoing scholarly reflections on the implications of the attacks, it unravels and explores three distinct and influential narratives concerning freedom of expression that have developed amongst a range of actors, including these bodies, in the three years since the attacks took place. Section 2, ‘Freedom of Expression as Identity’, recalls how the Charlie Hebdo attacks spurred an outpouring of political declarations concerning freedom of expression, but also laid bare the deep and long-standing cultural divisions surrounding this right. Section 3, ‘Freedom of Expression as a Human Right’, unpacks the various ways in which the Charlie Hebdo attacks and states’ responses to them engage provisions of international human rights law, particularly Articles 19 of the Universal Declaration on Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) concerning freedom of opinion and expression. Section 4, ‘Freedom of Expression as Part of the Problem’, turns to examining international approaches to preventing and countering violent extremism (PVE and CVE), which draw upon and support states’ own policies in the field. This article shows that international human rights law on the freedom of expression—particularly on the right to be protected from physical attack, the right to offend religious believers, including through forms of art, and with respect to prohibitions on blasphemous speech—is well-established and should critically frame states’ policies in response to such attacks. It also demonstrates how evolving approaches towards violent extremism, including those of United Nations (UN) human rights bodies themselves, may serve to undermine the same normative framework of international law on freedom of expression. This article therefore exposes the contrasts between the three narratives, whilst revealing the inconsistencies and tensions within them, as they are anything but internally unified and coherent.
Freedom of Expression as Identity
The Charlie Hebdo attacks provoked an outpouring of reactions from around the world in their immediate aftermath. Many of these responses centred around freedom of expression—including those from states’ leaders, intergovernmental figures, religious authorities, media commentators, members of the public and, of course, non-governmental organisations (NGOs) in the field, such as ARTICLE 19, Committee to Protect Journalists and Media Legal Defence Initiative. ‘Freedom of expression’ as such—beyond the narrower notions of ‘freedom of the press’ or ‘freedom of the media’, or the similar First Amendment inspired concept of ‘freedom of speech’—was located at the epicentre of the whirlwind of reflections, a pivotal idea and powerful symbol, capturing but also polarising attention around the world. Freedom of expression as a rallying point was repeatedly invoked, hailed, qualified and contested in France, across Europe and internationally in a way that has seldom been seen in modern times. Whether through its express affirmation, qualification or denial, freedom of expression drew considerable global attention in the period following the attacks. The positions taken towards freedom of expression in the speeches and statements of political leaders and others stood as markers of their identity. The constitutive function of freedom of expression for democracies—which is reflected in the right’s express recognition in states’ domestic constitutional law, international and regional treaties which they have ratified, notably the ICCPR and the European Convention on Human Rights (ECHR), as well as the European Union (EU) Charter of Fundamental Rights—was thus brought into sharp relief in the wake of the Charlie Hebdo attacks.
Consider the swelling of high-level support for freedom of expression in their wake. A ‘universal belief in the freedom of expression’, as President Barack Obama stated, or an ‘unfailing attachment to freedom of expression’ as a universal value, as the Joint Statement of the Ministers of the Interior of the EU put it later, framed the outrage of many other world leaders to the Paris attacks. A series of intergovernmental figures expressed similar sentiments. The UN Secretary-General, Ban Ki-moon, identified the murders in Paris as ‘an attack against freedom of expression and freedom of the press – the two pillars of democracy’, while the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, reflected on the importance of freedom of expression for the post-World War II world order. David Kaye, the UN Special Rapporteur on the protection and promotion of freedom of opinion and expression, pointed out that the attack on Charlie Hebdo was ‘one of the gravest attacks on journalists and a free press in recent history’. Strong condemnations came from the Organisation of Islamic Cooperation, and many Muslim states individually too, though these appeared to hinge much less on a commitment to freedom of expression, if at all. States with significant Muslim populations, such as Mauritius and the Philippines, and Muslim organisations, such as the Council on American-Islamic Relations, however, did affirm freedom of expression as a value and right in their denunciations of the attacks. People took to the streets of Paris and major Western cities—including London, Brussels, New York, Montreal, Jerusalem, Istanbul, Sydney and Tokyo—in record numbers in an apparent gesture of collective solidarity against the Paris attacks and for free speech. The public outpouring was amplified and concentrated online. As a meme and slogan, ‘Je Suis Charlie‘ took hold on social media, with the Twitter hashtag #JeSuisCharlie reportedly tweeted more than five million times by 22:00 GMT, on Friday, 9 January, two days after the attack.
At the same time, significant splits in global attitudes towards freedom of expression were apparent very soon afterwards. Indeed, on the very same day, Iran’s Foreign Ministry spokeswoman Marzieh Afkham commented that ‘all acts of terrorism against innocent people are alien to the doctrine and teachings of Islam’, but ‘making use of freedom of expression … to humiliate the monotheistic religions and their values and symbols is unacceptable.’ Somewhat surprisingly, a week after the attacks, Pope Francis said ‘you cannot insult [or] make fun of the faith of others’. Turkey’s Prime Minister Ahmet Davutoğlu called the reproduction of a selection of the Charlie Hebdo’s cartoons in the daily Cumhuriyet’s coverage of the Paris attacks ‘grave provocation’, stating that ‘freedom of expression does not mean the freedom to insult’. The publication of the ‘survivors issue’ featuring a cartoon of the Prophet Mohammed with a ‘Je Suis Charlie‘ sign under the caption ‘Tout Est Pardonné‘ (‘All Is Forgiven’) on 14 January, provoked criticism from leaders of Muslim states. The OIC’s Independent Permanent Human Rights Commission was ‘appalled by the … repeated publication of sacrilegious caricature of Prophet Mohammad … and squarely [condemned it]’. In its view, the publication ‘further exacerbated the existing debate on the limits of freedom of expression by converting the so-called “right to offend” into a “duty to offend” and was an “extreme act of malicious provocation and hatred based on ill-founded presumption of the right to insult and defame the faith, values and cultures of others in the name of freedom of expression”‘. The issue also fuelled violent protests across the Muslim world—in Afghanistan, Algeria, Gaza, Iran, Jordan, Kuwait, Lebanon, Niger, Pakistan, Sudan, Tunisia and Turkey—prompting The Economist to suggest that ‘free speech is … in many places at best a wavering ideal.’
Divergences in political positions towards freedom of expression were coupled with the exposed hypocrisy of many political leaders’ public posturing in support of the right in light of the actual records of their states. Prime ministers, ministers and high ranking officials from states with seriously troubling freedom of expression records—notably Egypt, Bahrain, Algeria, the United Arab Emirates, Turkey, Gabon, Russia and Hungary—were amongst world leaders at the head of the rally of 1.5 million which marched down Boulevard Voltaire on 11 January 2015. Such leaders’ gestures in support of freedom of expression in the immediate wake of the Paris attacks contrasted markedly with their domestic practices and policies. Perhaps the strangest presence on the ‘Unity March’ was that of the ambassador of Saudi Arabia to France who attended the Paris rally just two days after his state flogged the activist Raif Badawi 50 times, in the first in a series of 1,000 lashes, a sentence to be carried out over 20 weeks as punishment for insulting Islam. Saudi Arabia’s double standards on respect for freedom of expression and freedom of religion or belief were further highlighted when the state hosted the fifth meeting of the so-called Istanbul Process on the implementation of Human Rights Council Resolution 16/18 on combating of religious intolerance and discrimination in Jeddah on 3 and 4 June 2015.
The Charlie Hebdo attacks also brought to the surface underlying challenges of identity politics and racism in France and in Europe more generally, which demanded a deeper consideration of the context of the attacks. Many commentators rejected the meme ‘Je Suis Charlie‘ because, notwithstanding their condemnation of the attacks and support for freedom of expression, they refused to be identified with the content of Charlie Hebdo‘s messages and/or sought the recognition of the Jewish and Muslim identities of other victims of the attacks. That original slogan and its adaptation, ‘Je Ne Suis Pas Charlie‘, were seen to ‘play into a cheap binary that serves neither the massacre victims nor the discourse around free speech and Islamophobia that surrounds the killings’. In an astute and sobering appeal for a transcending of such dichotomies written shortly after the attacks, Titley reflected that ‘it is possible … to oppose an assault on free speech, while also insisting on the hypocrisies, inequalities and elisions that undermine the idea that free speech is a cornerstone of “the West”‘ and ‘to defend a universal right to free expression, while noting the strange contemporary relativism that has little interest in the content, context and consequences of what is expressed’.
The freedom of expression-focused responses to the attacks in Paris and Copenhagen—from political leaders, the public or commentators—also should be seen against a broader historical perspective. After all, the Charlie Hebdo attacks stand as the most recent episode in the ‘modern history of freedom of expression’ and ‘religious censorship’. Its antecedents stretch back more than a quarter of a century, encompassing the violence that spread across continents following the release of the ‘Innocence of Muslims’ video in June 2012, the publication of cartoons of the Prophet Mohammed by the Danish newspaper Jyllands-Posten in November 2005 and the publication of Salman Rushdie’s Satanic Verses in September 1988, which prompted Ayatollah Ruhollah Khomeini, the Supreme Leader of Iran, to issue a fatwa on Salman Rushdie in February 1989. Yet the latest global preoccupation with freedom of expression and its limits is distinguished from these earlier episodes, including the ‘Danish cartoons controversy’, in one fundamental respect: the heightened role of online media, particularly social media platforms, in disseminating information and ideas instantaneously and globally. In today’s rapidly changing technological environment, in which the Internet provides the principal forum for the exercise of freedom of expression, intermediaries exert a critical influence in the facilitation and also curtailment of rights. Significant increases in Internet penetration over the past two decades have radically transformed the possibilities for dissemination of speech, including speech that causes offence to religious sensibilities and for the condemnation of such speech. When the fatwa was imposed on Rushdie in 1989, there were no official statistics on Internet penetration and the proposal for the World Wide Web was still to be presented by Sir Tim Berners-Lee. There are more parallels between the Charlie Hebdo affair and the Danish cartoons’ crisis, which also involved offensive portrayals of the Prophet Mohammed and first saw ‘cell phones and the Internet as new means of global political mobilisation, communication, and even the deployment of virtual violence.’
Yet Internet penetration and the impact of social media platforms have massively changed the landscape for freedom of expression. According to the International Telecommunications Union, by the time of the Danish cartoons’ controversy in 2005, there were 1,024 billion Internet users (15.8 per cent penetration), three-fifths of whom were in developed states. A decade later, at the time of the Charlie Hebdo affair in January 2015, there were 3,174 billion Internet users (43.4 per cent penetration), with twice as many Internet users in developing states than developed ones. By 2015, more than half of Internet users (1,506 billion) were located in the Asia-Pacific region and there were 141 million in Arab states. Moreover, social media platforms, notably Twitter and Facebook, which presented key forums for debate about Charlie Hebdo’s messages and tools for solidarity movements following the attacks, simply did not exist in 2005. Technological advances have thus exploded the reach of expression that is deemed offensive, but also the scale of global contests over such speech. In the aftermath of the attacks, the expanding possibilities for the online dissemination of offensive content, and the so-called ‘hate speech’ in particular, have become a point of major policy concern in European states. This development is set to continue following the presentation in May 2016 of European Commission’s ‘Code of Conduct on Countering Illegal Hate Speech Online’, which has been endorsed by Facebook, Twitter, YouTube and Microsoft, and has been followed with legislative responses at the domestic level, particularly in Germany.
Freedom of Expression as a Human Right
This Section now considers how Article 19 of the ICCPR, which is based on Article 19 of the UDHR, is implicated by the actions of the assailants of the Charlie Hebdo satirists and the work of the satirists themselves. As at 1 May 2018, Article 19 of the ICCPR has been ratified by 170 states and signed by six states with 21 states, most notably Saudi Arabia, Malaysia and Myanmar, taking no action. Article 19 of the ICCPR obliges ratifying states to ensure that ‘[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’ Under Article 19 of the ICCPR, states may impose ‘certain restrictions, but these shall only be such as are provided by law and are necessary’ for the achievement of particular objectives, namely ‘respect of the rights or reputations of others’ or ‘protection of national security or of public order (ordre public), or of public health or morals’. Article 20 of the ICCPR subsequently provides that ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. These treaty provisions are clearly legally binding on those states that have agreed upon their terms and have ratified them. Moreover, their interpretation by UN human rights bodies—in particular the Human Rights Committee’s authoritative interpretation of Article 19 of the ICCPR, General Comment No 34—are valuable as analytical tools for assessing states’ responses to the attacks, ‘bringing into the discussion the carefully negotiated elaborations of the meaning of specific rights that have emerged from decades of reflection, discussion and adjudication’. International law is especially germane to issues of freedom of expression because of the inherent transnational quality of the right whose exercise is recognised as being ‘regardless of frontiers’.
The Right to Be Protected from Attack
The attack on Charlie Hebdo’s satirists most clearly engages freedom of expression because it targeted individuals who depended on the exercise of that right for a living. The incident pushed France to the top of the Committee to Protect Journalists’ annual league table of ‘deadliest countries’ in 2015, second only to Syria and ahead of states such as Iraq, Bangladesh, Mexico and Somalia that year. It also stands as the second deadliest event for journalists in recent history, following the Maguindanao massacre in the Philippines that claimed the lives of 32 journalists on 23 November 2009. The attack deprived the victims of exercising their freedom of expression in the most extreme way, through the ultimate act of prior censorship, and was also a symbolic assault on freedom of expression given that the magazine had long seen itself as a champion of this right.
Over recent years there has been a remarkable profusion of international and regional standards and initiatives on the protection and safety of journalists. Indeed, no other freedom of expression issue attracts such a level of consensus across states. This body of international human rights standards includes a new Security Council resolution on the protection of ‘journalists, media professionals and associated personnel in armed conflict’ adopted in May 2015 and a set of Human Rights Council and General Assembly resolutions on the safety of journalists. International soft law standards include the recommendations of two individual UN mandate-holders on the subject and the Joint Declaration on Crimes against Freedom of Expression of the four international mechanisms for promoting freedom of expression. Over recent years, there has also been the adoption of numerous United Nations Educational, Scientific and Cultural Organization (UNESCO) declarations and decisions, the United Nations Plan of Action on the Safety of Journalists and the Issue of Impunity and the biennial publication of the UNESCO Director-General’s Report on the Safety of Journalists and the Danger of Impunity. Regional bodies, notably the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, have prioritised the protection of journalists and other media workers in their work. Key institutions of the Council of Europe have developed a number of relevant instruments and have established an innovative online ‘Platform to promote the protection of journalism and safety of journalists’ to bring information about physical threats to journalists and media workers to the attention of its bodies. In April 2016, the Council of Europe’s Committee of Ministers also adopted a recommendation on protection of journalism and the safety of journalists and other media actors. For its part, the Council of the EU has identified as a priority the fight against ‘violence, persecution, harassment and intimidation of individuals, including journalists and other media actors … and … impunity for such crimes’ in the EU Human Rights Guidelines on Freedom of Expression Online and Offline.
Notwithstanding these global and regional instruments and initiatives, the Human Rights Committee’s General Comment No 34 and the jurisprudence of the European Court of Human Rights (ECtHR) on Articles 2 (on the right to life) and 10 (on freedom of expression) of the ECHR remain the most compelling benchmarks for European states, in particular for but not only France, in constructing their responses to the Charlie Hebdo attacks. Clearly, the killing of Charlie Hebdo‘s journalists and satirists could not be justified by the manner in which those individuals exercised their freedom of expression. In accordance with General Comment No 34, the attacks demanded to ‘be vigorously investigated in a timely fashion’, the victims’ families ought to be given ‘appropriate forms of redress’ and there should be ‘in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression’. In addition, all states are obliged to put in place an appropriate framework of criminal justice, including the ‘law enforcement machinery for the prevention, suppression and sanctioning’ of violations of the right to life and specific ‘operational measures to protect an individual whose life is at risk from the criminal acts of another individual’. According to ECtHR jurisprudence, state authorities should also apply such positive measures to protect the meaningful exercise of freedom of expression, particularly when they ‘knew or ought to have known … of a real and immediate risk’ to the lives of those exercising it for a living, such as journalists. In assessing whether states have failed to ‘take reasonable measures … to prevent [such] a real and immediate risk to … life’, the extent to which such authorities ‘ought to have been aware of the vulnerable position in which a journalist who covered politically sensitive topics placed himself/herself vis-à-vis those in power at the material time’ should be taken into account. With respect to these standards, one could argue that the French authorities had met their duty to protect Charlie Hebdo‘s journalists who they certainly knew were vulnerable to attack; police protection officers were reportedly posted outside the offices since 2006 and one of the victims, Stéphane Charbonnier or ‘Charb’, had been allocated his own personal protection officers since 2011.
In addition, states have a duty to create a positive climate for the exercise of freedom of expression—a ‘favourable environment for full participation in public debates by all persons concerned, enabling them to express their opinions and ideas without fear, even if such opinions and ideas are contrary to those held by the authorities or a significant share of public opinion, or viewed as offensive or shocking’. The effective implementation of this positive duty faces its gravest obstacle in what Garton Ash in his magisterial work Free Speech: Ten Principles for a Connected World has called the ‘assassin’s veto’—the silencing of individuals through their murder and through the ‘chilling effect’ or self-censorship that takes hold of others as a result of their fear of being physically attacked and perhaps even killed themselves. The silencing of the Charlie Hebdo victims was fundamentally connected to their explicit position towards freedom of expression: the magazine’s journalists were targeted and lost their lives precisely because of their defiant lampooning of Islam, particularly the Prophet Mohammed. Similarly, the victims of the café shooting in Copenhagen were targeted because of their attendance at a discussion on free speech, art and blasphemy. But it was the power of the fear of further attacks, rather than respect for the victims, that critically shaped the responses of the media across many countries. Garton Ash notes how Denmark’s Jyllands-Posten also refrained from republication with Flemming Rose, its editor who had commissioned the cartoons at the centre of the Danish cartoons crisis of 2005 and 2006, lamenting: ‘We caved in. Violence works. Sometimes the sword is mightier than the pen.’ Editors were thus torn between considerations of public interest and staff safety in deciding whether or not to reuse and republish the cartoons in the days following the attacks. Interestingly, this question drew different responses from print and online media outlets, which were more likely to republish the cartoons. As solutions for the ‘assassin’s veto’, Garton Ash proposes collective action and solidarity amongst news media, through coordinated republication, as well as the promotion of a ‘one-click away’ principle for Internet companies. These solutions can never be an absolute answer to the chilling effect and crucially rely on intermediaries, particularly social media platforms, who wield immense power over freedom of expression, but whose responsibilities to protect and promote that right are only beginning to be articulated by the UN human rights system. It seems only logical, however, that the transnational chilling effect of the ‘assassin’s veto’, as in the Charlie Hebdo attacks, requires that the positive duty to create a favourable environment for freedom of expression stretches to states beyond the one in which such an attack took place. This transnational aspect of the protection of freedom of expression has yet to be addressed by regional courts and other authorities, however.
The Right to Offend Religious Believers
The offensive content of Charlie Hebdo’s cartoons, the magazine’s ‘message’, rather than deadly nature of the attack itself, fast became the major focus of commentaries in the period after the attacks. For many across the Muslim world and even in the West, the blasphemous images produced by Charlie Hebdo’s cartoonists meant that it was they who were really at fault, and so even ‘deserved’ to be killed. But the backlash of responses against the ‘Je Suis Charlie‘ meme also encompassed the critical perspectives of politicians and writers in the West, who condemned the attacks, but simultaneously sought to distance themselves from what they saw as Charlie Hebdo‘s ‘racist and Islamophobic provocations’. The magazine had a long established reputation for stereotyping Muslims and was blamed for fuelling tensions between different communities in France before the attacks; a controversial reputation it has maintained, notably in relation to Europe’s migrant crisis.
In contrast to the relative coherence between the international and European approaches towards the issue of the protection and safety of journalists, there is marked divergence and inconsistency between the international and regional systems on issues of blasphemy and religious offence. On the one hand, European jurisprudence has shown a strong protection of freedom of expression departing from the ECtHR’s pioneering principle, which was frequently recalled after the attacks on Charlie Hebdo, that freedom of expression encompasses the right to disseminate information or ideas that ‘offend, shock or disturb the State or any sector of the population’. The Court has supported artistic freedom as ‘essential for a democratic society’ and found that convictions for defamation of a religious community and of a ‘national, race and belief’ violated freedom of expression. The former European Commission on Human Rights held that Article 9 of the ECHR on freedom of religion or belief could not ‘extend to guarantee a right to bring any specific form of proceedings against those who, by authorship or publication, offend the sensitivities of a group of individuals’. It later ruled that ‘members of a religious community must tolerate and accept the denial by others of their religious beliefs and even the propagation of doctrines hostile to their faith’. In addition, the Parliamentary Assembly of the Council of Europe has endorsed the review of blasphemy laws, while the Venice Commission has expressly called for their abolition.
On the other hand, the Court has declined to interfere with prohibitions on speech deemed to be blasphemous on the basis of states’ margin of appreciation and a lack of a European consensus. Although the Court has asserted a more positive approach to freedom of expression in its more recent jurisprudence, its earlier line of cases has not been overruled and as such remains deeply problematic from a freedom of expression perspective, its existence serving to legitimise bans on blasphemy in Europe and their existence beyond. It further reinforces the justifications for prohibitions on blasphemy (such as in Austria, Finland, Greece, Ireland and Italy) and ‘religious insult’ or ‘vilification’ of religious feelings (such as in Cyprus, the Czech Republic, Spain, Finland, Germany, Greece, Italy, Lithuania, the Netherlands, Poland, Portugal and Slovakia) across the EU, as well as within other Council of Europe Member States (such as Turkey). Moreover, the ECtHR’s approach to ‘hate speech’ lacks conceptual clarity largely due to the ‘guillotine’ effects of Article 17 of the ECHR, the ‘abuse clause’, which has been applied to avoid a substantive review of cases concerning anti-Islamic and anti-Semitic ‘hate speech’ under Article 10 of the ECHR in a number of cases. Laws prohibiting blasphemy or religious insult should be found to be in violation of the ECHR on the basis of a stronger protection of freedom of expression, the idea of the ECHR as a ‘living instrument’ and a recognition of the marked shift in international human rights law approaches towards such laws over the recent years, which are discussed further below. The ECtHR should also refrain from applying Article 17 of the ECHR precisely because its use undermines a principled basis upon which cases are decided and disrupts the building of a clear jurisprudence, particularly in the field of freedom of expression.
A decade ago, the Human Rights Committee declined to examine a complaint brought by two Muslims following the Danish cartoons crisis, rather like the ECtHR, on procedural grounds. Had the Committee chosen to engage with the merits of the case, there might have been directly relevant jurisprudence involving artwork satirising the Prophet Mohammed and Islam. Nonetheless, a broad range of types of expression, including artistic expression, are clearly protected by Article 19 of the ICCPR. In 2013, the Special Rapporteur in the field of cultural rights, Farida Shaheed, reported on restrictions imposed on artists ‘quoting sacred texts, using religious symbols or figures, questioning religion or the sacred’ in their works. Noting that ‘artistic creativity demands an environment free from fear and insecurity’, the Special Rapporteur recommended that ‘States should abide by their obligation to protect artists and all persons participating in artistic expressions and creations from violence by third parties’ and that decision-makers ‘take into consideration … the right of artists to dissent, to use political, religious and economic symbols as a counter-discourse to dominant powers, and to express their own belief and world vision’.
Following the Charlie Hebdo attacks, however, there has been an upsurge in attention paid to artistic expression by the UN human rights bodies. Nudged by civil society and supportive states, the Human Rights Council took steps to more expressly defend artistic expression throughout 2015. An NGO-organised side-event on ‘defending artistic expression’ at the 28th session in March 2015 was followed by the proposal of a resolution on artistic expression by the United States, which was later withdrawn after the Organisation of Islamic Cooperation proposed hostile amendments based on the language of resolutions on ‘combating defamation of religions’ at the 29th session in June 2015. Finally, at the 30th session in September 2015, 57 states delivered a joint statement affirming artistic freedom, condemning ‘threats, censorship and violations’ of artists’ human rights and urging that ‘reactions to controversial artwork should be expressed not through violence but through dialogue and engagement’. Thus, the Human Rights Council’s action to shore up artistic freedom in the wake of the Charlie Hebdo attacks seemed set to follow a typical trajectory of norm generation within the Council, towards the adoption of a dedicated resolution on the subject. No such resolution, let alone one that is robust in its terms, has (yet) been forthcoming due to ongoing controversies amongst states surrounding direct references to religion as a justification for restrictions on artistic expression and the influence of key OIC states, particularly Saudi Arabia, within the Council. Support for artistic expression is still to be found in the Council’s third resolution on ‘civil society space’ adopted at the 32nd session in July 2016, which draws a connection between the ‘important role of artistic expression and creativity in the development of society and … a safe and enabling environment for civil society’.
As independent experts, free from the constraints of states’ interests, UN Special Procedures mandate-holders have been able to address issues of artistic expression more directly in the aftermath the Charlie Hebdo attacks. Writing informally on 11 January 2015, the Special Rapporteur on freedom of opinion and expression, David Kaye, urged the repeal of blasphemy laws and the reinforcement of the UN human rights machinery. He also highlighted the persistence of ‘[g]overnment repression of artists of all sorts’ in his 2016 report to the General Assembly on ‘critical contemporary challenges to freedom of expression.’ UN experts have also issued official statements condemning the censorship and the silencing of artists based on religious ideas. For instance, in December 2015 David Kaye and other mandate-holders appealed to the authorities of Saudi Arabia to halt the execution of the poet Ashraf Fayadh for his allegedly blasphemous writings.
Calls for Charlie Hebdo‘s cartoons to be banned on the grounds that they are blasphemous, insulting or offensive to Islam would be denied under settled international law. Restrictions on freedom of expression which are ‘enshrined in traditional, religious and other such customary law’ are incompatible with the International Covenant on Civil and Political Rights (ICCPR) according to the Human Rights Committee in General Comment No 34. Moreover, ‘prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant’, unless they qualify as prohibitions on incitement under Article 20, paragraph 2 of the ICCPR. International human rights law thus recognises the rights of individuals, whether believers, agnostics or atheists, but not abstractions such as religious ideas, symbols and tenets.
The Human Rights Committee’s position has been consolidated in various ways over recent years. First, Human Rights Council Resolution 16/18 of March 2011 and successive resolutions of the Human Rights Council and General Assembly are focused on ‘combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief’, rather than ‘defamation of religions’, a problematic concept which had been the subject of more than a decade’s worth of earlier resolutions. Secondly, the Rabat Plan of Action, recommends that ‘states that have blasphemy laws should repeal them’ on the grounds that ‘such laws have a stifling impact on the enjoyment of freedom of religion or belief, and healthy dialogue and debate about religion.’ Thirdly, several Special Procedures mandate-holders have re-affirmed their opposition to blasphemy prohibitions after the Charlie Hebdo attacks and, in doing so, have highlighted long-recognised policy justifications for their abolition. The Special Rapporteur on freedom of opinion and expression, David Kaye, has emphasised how blasphemy laws suggest ‘a government’s support for targeting a person for her opinion or expression’, ‘are regularly used as instruments to limit religious expression or dissent’ and ‘send the wrong message and breed resentment more than they protect the sensibilities of believers’. In a similar vein, the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, denied that blasphemy laws may be justified under Article 18 of the ICCPR, noting that ‘blasphemy laws … may fuel intolerance, stigmatization, discrimination and incitement to violence and discourage intergroup communication’.
The attacks on Charlie Hebdo were widely seen as having been motivated by the ‘hate speech’ of the satirists. Charlie Hebdo‘s cartoonists were regularly accused and often sued for ‘hate speech’ for the material they produced. At the same time, the attacks precipitated a ‘resurgence of racist and xenophobic discourse in both the public and political spheres’ and the ‘upsurge in violent incidents of a racist, anti-Semitic or anti-Muslim nature’, as later noted by the Human Rights Committee itself. Though there is no definition for ‘hate speech’ as such, under international law any restrictions on freedom of expression in order to protect others’ rights to equal treatment and non-discrimination would clearly need to comply with the requirements of Article 19 of the ICCPR. There is limited jurisprudence on Articles 19 and 20 of the ICCPR in which the Human Rights Committee has on occasion supported measures restricting freedom of expression to support the rights of members of religious minorities to be free from discrimination. Yet recent years have seen a great focus from different UN human rights bodies other than the Human Rights Committee both on the very relevant subject of ‘combating religious intolerance’ and on the meaning of ‘incitement’, particularly Article 20 of the ICCPR, in international law. Indeed, Human Rights Council Resolution 16/18 and the Rabat Plan of Action show that the denial of prohibitions on blasphemy as acceptable does not mean that the international human rights system cannot visualise any responses to the type of religious prejudice generated by Charlie Hebdo cartoons, including any responsibilities on the part of such publications. Together these two texts provide a framework for how states, and also the media, should combat intolerance and incitement on religious grounds in societies.
Resolution 16/18 indicates that states should among other things: (1) ‘[encourage] the creation of collaborate networks to build mutual understanding, promote dialogue and inspire constructive action’; (2) ‘[create] an appropriate mechanism within governments to … identify and address potential areas of tension between members of different religious communities, and assist conflict prevention and mediation’; (3) ‘[speak] out against, including advocacy of religious hatred intolerance and incitement to discrimination, hostility or violence’; (4) ‘[adopt] measures to criminalise incitement to imminent violence based on religion or belief’; (5) ‘[understand] the need to combat denigration and negative religious stereotyping of persons, as well as incitement to religious hatred, by … education and awareness-raising’; (6) ‘[recognise] that open, constructive and respectful debate can play a positive role in combating religious hatred’; and (7) ‘encourage the representation and meaningful participation of individuals irrespective of their religion in all sectors of society’.
The Rabat Plan of Action provides an especially salient elaboration of the obligations and responsibilities of states and non-state actors, including the media, regarding the prohibition on incitement to hatred in international human rights law. It has gathered support amongst the treaty bodies and Special Procedures for its ‘guidance on how to build resilience in society against incitement to religious hatred and concomitant acts of violence’. The Plan, which is premised on the position that any prohibition on incitement should also meet the criteria for permissible restrictions on freedom of expression under Article 19, paragraph 3, embodies a multi-pronged approach which encompasses criminal sanctions for incitement if six conditions—concerning the expression’s context, speaker, intent, content and form, its extent and the likelihood, including imminence, of resulting harm—are fulfilled. While some of the Charlie Hebdo cartoons might meet this extremely high threshold, it is likely that the vast majority of them would not pass muster. But the overwhelming value of the Rabat Plan stems from its mainly non-coercive approach to incitement to hatred, one that largely rests on speech-related solutions. The plan recommends that states put in place, in response to forms of incitement which fall below the threshold for criminal sanctions, a system civil and administrative sanctions and measures to promote civility and respect in societies, and also ensure that there is comprehensive anti-discrimination legislation and measures to promote intercultural understanding, including through education. It also emphasises that the media, including such satirical publications as Charlie Hebdo, have moral and social responsibilities to actively combat discrimination and promote intercultural understanding and to be, at minimum, ‘alert to the danger of furthering discrimination or negative stereotypes of individuals and groups’ and avoid ‘unnecessary references to race, religion, gender and other group characteristics that may promote intolerance’. These aspects of the Rabat Plan provide the strongest basis for criticism of Charlie Hebdo‘s satirists from an international human rights perspective.
Freedom of Expression as Part of the Problem
Notwithstanding these reflections on the public outpourings in support of and against freedom of expression and the relevance of jurisprudence and authoritative interpretations of the right to the Charlie Hebdo attacks, it seems that their most enduring legacy in policy terms will be as a major stimulus for evolving approaches on preventing violent extremism (PVE) and countering violent extremism (CVE)—including at the global level. The growing popularity of such approaches since January 2015 suggests that the attacks undoubtedly ‘strengthened the political and legal resolve to address (violent) extremism and radicalisation’ through the establishment or, where they did not exist, the expansion of such policies.
Broadly speaking, PVE and CVE policies are intended to address the phenomena, especially radicalisation, which are considered to be at the root causes of terrorist activity. A diversity of domestic policies framed expressly as ones concerning PVE and/or CVE has rapidly expanded over the recent years, however, to include the United States’ Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism, the UK’s Prevent strategy and the proposal of a new Counter-Extremism and Safeguarding Bill in May 2016, an action plan launched by the government of Norway and the establishment of the Counter-Violent Extremism Unit within the Department of the Attorney-General of Australia. Such initiatives are closely connected to counter-terrorism approaches; unsurprisingly, both France and Belgium have bolstered their counter-terrorism legislation recently, with France repeatedly extending the state of emergency that it first imposed in the aftermath of the November 2015 attacks. Such initiatives against extremism as such have not been restricted to ‘Western’ or liberal states: Russia has had a strategy for countering extremism since 2014, while Central Asian states have adopted their own initiatives over recent years. The proliferation of PVE and CVE approaches at the domestic level has inevitably pressed ‘the issue’s increasing significance on the global agenda’, particularly since January 2015. There has certainly been a marked increase of global gatherings on PVE and CVE specifically following the attacks, most notably the US-hosted White House Summit on Countering Violent Extremism in February 2015, the Leaders’ Summit to Counter ISIL and Violent Extremism of September 2015 and the UN Counter-Terrorism Implementation Task Force’s Conference on Preventing Violent Extremism in April 2016. The Ministers of Foreign Affairs of the OSCE adopted a Declaration on Preventing and Countering Violent Extremism and Radicalisation that Lead to Terrorism of December 2015 and the OSCE has subsequently embraced an open-ended social media campaign ‘OSCE United in Countering Violent Extremism’.
At the epicentre of recent global approaches, however, has been the policy framework presented by the UN Secretary-General’s Plan of Action to Prevent Terrorism of December 2015, which builds upon Security Council resolution 2178 of September 2014 which condemned violent extremism as ‘conducive to terrorism’. Yet the area of PVE and CVE has also quickly emerged as a discrete area within the UN human rights system. A Joint Statement on CVE, which was delivered on behalf of 77 states at the Human Rights Council’s 28th session in March 2015, was followed by the adoption of the Council’s first resolution on PVE and CVE at its 30th session in October 2015. Subsequent sessions have seen a panel discussion (31st session) and the publication of a compilation of the ‘best practices and lessons learned’ (33rd session) that were both mandated by the resolution. In addition to the activities of the UN Secretary-General and the Human Rights Council, the Special Rapporteur on counter-terrorism and human rights focussed his 2016 report to the Council on ‘human rights in the context of preventing and countering violent extremism’ (32nd session), and there have been numerous side-events on PVE and CVE policies hosted by NGOs around the council’s sessions. The Special Rapporteur on freedom of opinion and expression, together with his regional counterparts, issued a ‘Joint Declaration on freedom of expression and countering violent extremism’ on 4 May 2016. It is also worth noting that the Human Rights Committee for its part has issued concluding observations critical of the relevant policies of states, such as Kazakhstan and Russia, on counter-extremism generally rather than CVE or PVE specifically, and has also found that the seizure of brochures relating to election observation under the Belarussian Law on Fighting Extremism violated Article 19 of the ICCPR.
That the convening power of the UN human rights system is being used to debate and address how states should go beyond narrow military or securitised approaches to countering terrorism, which have proven ineffective and even counterproductive, towards developing a ‘preventative, civilian-led framework’ may be viewed as a positive development. Yet there are obvious tensions between and within various UN texts—particularly the Secretary-General’s report and Human Rights Council Resolution 30/15, on the one hand, and the report of the Special Rapporteur on counter-terrorism, on the other, which embodies a far more cautionary and critical perspective—despite their repeated assertions of the need for compliance with international human rights norms. For instance, the Special Rapporteur has expressed concern that the ‘extensive nature’ of the description of violent extremism and the absence of any requirement of violence in Human Rights Council Resolution 30/15 could open the door to limitations on critical expression. The lack of a clear and coherent approach by UN bodies to PVE and CVE policies reflects disagreements between distinct bodies though is explicable given their fundamentally distinct characteristics: whereas the Special Rapporteur is an independent human rights expert, the Human Rights Council is motivated by political interests of its Member States, while the Secretary-General may have sought a document which would attract worldwide support. But the result is a bifurcated rather than a singular message from the UN system to states and other actors (including the intermediaries) about the proper parameters of such policies: whereas the Special Rapporteur’s report provides a strong basis for ongoing civil society scrutiny of PVE and CVE approaches, the Secretary-General’s report and Human Rights Council Resolution 30/15 offer reinforcement and legitimacy from the UN system to sweeping national approaches on PVE and CVE which may directly challenge freedom of expression. The uncertainty of such a split message undermines the authority of the UN system in providing leadership in this realm.
More concretely, although PVE and CVE policies limiting freedom of expression may be possible under Article 19 of the ICCPR (so long as they are enshrined in a clear law and are narrowly tailored to serve legitimate objectives, such as the protection of national security, public order or other human rights), emerging approaches in the field—including those texts adopted by UN bodies—stand to undercut freedom of expression by facilitating an understanding of the exercise of the right as problematic. First, this is due to a lack of conceptual clarity and precise definition about what constitutes ‘violent extremism’ and ‘extremism’ more generally, meaning that there is a real risk of overbroad restrictions on the right. The UK’s Counter-Extremism Strategy, known as ‘Prevent’, for instance, includes a far-reaching definition of extremism going beyond terrorism, encompassing ‘vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs’ including ‘calls for the death of members of our armed forces, whether in this country or overseas’. It also explicitly includes both violent and even non-violent extremism. (Interestingly, freedom of expression does not explicitly appear as such a core value, although there is strong evidence that it is.) Such a broad approach seems supported by the expansive definition of violent extremism contained in Human Rights Council Resolution 30/15, which includes ‘methods and practices of violent extremism in all their forms and manifestations are activities that aim to threaten the enjoyment of human rights and fundamental freedoms, and democracy, and threaten the territorial integrity and security of States, and destabilize legitimately constituted Governments’. This definition lies in contrast to the Human Rights Committee’s position that ‘extremist activity’ should be ‘clearly defined to ensure that [the offence does] not lead to unnecessary or disproportionate interference with freedom of expression’. Moreover, the Special Rapporteur on counter-terrorism and human rights has also noted that the protection of the ‘peaceful pursuance of a political, or any other, agenda—even where that agenda is different from the objectives of the government and considered to be “extreme”.’
There is also a related risk that manifestations of violent extremism will be conflated with terrorism, allowing for restrictions of speech which poses no threat to national security or does not incite violence at all. Rather like the offenses of ‘encouragement’ or ‘glorification’ of terrorism or lending ‘material support’ to terrorism, PVE and CVE approaches appear to target expression that ‘prepares the ideological ground for violent action’, but still falls short of the threshold of incitement. First, at the international level, the Secretary-General’s report regularly ties ‘violent extremism’ with ‘terrorism’, as if they pose synonymous threats, whilst at the same time deferring to states for their definition. Building a global framework to address an issue that is not defined though closely associated with another term, which itself lacks a clear meaning, is bound to lead to problems in terms of justification and implementation. As civil society organisations have cautioned, rather like earlier anti-terrorism policies, PVE and CVE programmes have a chilling impact upon the exercise of freedom of expression, raising the possibilities for further restrictions on civil society in increasingly hostile environments, thus failing to recognise the protection of human rights online. Little wonder that the Special Rapporteur on counter-terrorism and human rights has warned that ‘the use of the term [violent extremism] as a basis for the adoption of new strategies, measures and legislation may prove even more dangerous for human rights than the term terrorism’.
Secondly, PVE and CVE programmes threaten freedom of expression and the other rights—such as equality and non-discrimination, privacy and family life, freedom of thought, conscience and religion, and the right to education—of particular groups in society, such as schoolchildren and students, Muslims, environmentalists and those expressing themselves online. The UK’s Prevent strategy, for instance, has been shown to target children expressing political views, stop universities wishing to hold conferences on Islam and Islamophobia and damage trust between students and teachers. Universities have also been encouraged to monitor and record the online communications of students and staff, engendering ‘a climate of fear and intimidation … [forcing those] who are politically active and Muslim to censor themselves’ and ‘a culture of mistrust on campus and actually shutting down debate on the very topics we should be exploring’. A growing chorus of civil society voices has unsurprisingly argued that the Prevent strategy lacks any scientific basis and is ‘unjust’, ‘unproductive’ and counterproductive, given it risks alienating parts of the population, becoming a ‘huge source of grievance’ and undermining the very values it seeks to uphold. Furthermore, the practice of take-downs of online content, particularly on a mass-scale via the so-called Internet referral units, has been shown to encourage violent extremism, ‘inflaming resistance and helping “violent extremist” recruiters discredit platforms’.
Despite such challenges to freedom of expression, PVE and CVE strategies have apparently also drawn upon the positive exercise of the right as a tool to rebut ideologies leading to radicalisation. UN bodies have themselves consistently recognised the value of the counter-narratives, as well as inter-faith and inter-cultural dialogues to challenge and build resilience against violent extremism. The Secretary-General has recommended that states promote media and digital literacy, while the Human Rights Council has highlighted ‘the potential contribution of the media and new communication technology, including the Internet, to … strengthening the rejection of violent extremism’. According to the Joint Declaration of the international mandate-holders on freedom of expression, states should also ensure: transparency of PVE and CVE programmes and private enterprise initiatives that support them; the acceptance of reporting on acts of terrorism unless it incites violence; the protection of the confidentiality of sources; an absence of pressure on intermediaries to remove content; the encouragement of ‘open debate and access to information about all topics’; proper oversight of states’ surveillance which should be targeted to individuals rather than groups; and no blanket prohibitions on anonymity and encryption or the weakening of digital security tools. The NGO Access Now goes further by arguing for ‘independent reporting and open, free discussion online’, the facilitation of ‘open dialogue through technical means such as enabling replies in online forums’ and transparency of PVE and CVE programmes, including ‘those to remove content, deactivate accounts, or promote counter-narratives.’
This exploration of three narratives in the wake of the Charlie Hebdo attacks has exposed major features of the contemporary rhetorical, political and legal landscape of freedom of expression: the deep global divisions and ongoing hypocrisies that it gives rise to; the swathe of relevant international law, especially in the area of protection of journalists, and also with regard to artistic expression, ‘hate speech’ and blasphemy (although in relation to the latter two areas, European human rights law falls short of global standards); and the extensive scope of states’ PVE and CVE policies, which cast doubt on the authenticity and depth of their commitments to freedom of expression, as well as the UN human rights system’s responses towards violent extremism, which have so far lacked a sense of coherence. The three accounts also highlight a multitude of state and non-state actors whose investment and influence critically shape global discussions on freedom of expression: from the leaders and people of Europe to those of OIC states; from the ECtHR, to the UN Secretary-General to the Human Rights Council and its Special Procedures; from media organisations to Internet companies; from civil society organisations and NGOs, to public intellectuals. In today’s digital age, however, global debates concerning ‘religious censorship’, ‘hate speech’ and violent extremism appear destined to increasingly focus around questions surrounding the scope of the responsibilities of Internet intermediaries, especially social media companies. In capturing the ambivalence and resistance of societies, states and intergovernmental organisations towards freedom of expression today, the three narratives presented in this article ultimately serve to put all of us on notice that the understanding and defence of the right against formidable emerging challenges will be a profoundly tougher, but ever more necessary, enterprise.