Memorandum submitted by the National Secular Society
This response is presented jointly on behalf of the (UK) National Secular Society (NSS) and the International Humanist and Ethical Union (IHEU), which has representation at the UN and UN Human Rights Council (HRC). Both the NSS and IHEU actively support Human Rights, seek to promote the separation of religion and state and seek equality for all regardless of religion or belief. The author is Keith Porteous Wood, Executive Director of the NSS and an International Representative of IHEU.
This Submission demonstrates concerns about the effectiveness of the HRC and suggests policy responses. Because this Submission is necessarily brief, we have concentrated on threats to freedom of expression, but we have concerns about other aspects of Human Rights, for example those arising from concordats between the Holy See and other countries. Although the thrust of our conclusions is based on events up to 31 December 2007, where powerful additional evidence has emerged since, we have included it.
The Structure of this Submission is:
D. SUBVERSION OF UNHRC PROCESSES
E. ATTACKS ON FREEDOM OF EXPRESSION THROUGH MOVES TO ENFORCE DEFAMATION OF RELIGION LAW
F. DANGER OF REGIONALLY-, RELIGIOUSLY- OR IDEOLOGICALLY-BASED HUMAN RIGHTS INSTRUMENTS
We would welcome an opportunity to give oral evidence to the Committee and are happy to provide additional information. A Submission of this size can only sketch the outline of issues in the barest detail. More detail is given in our 17 page report Concerns about the Cairo Declaration on Human Rights in Islam and Moves to Outlaw the Defamation of Religion prepared for delegates to the April 2008 meeting of the Inter-Parliamentary Union in Cape Town.
The Society welcomes the strong emphasis placed by the Foreign and Commonwealth Office (FCO) on Human Rights in general, on the importance of the Universal Declaration of Human Rights (UDHR) (page 45 of the Report) and on freedom of expression (page 102). We note the awareness of the some of the shortcomings of the HRC referred to on (page 46).
The following criticisms are not directed at the secretariat and staff of the HRC, or at the Special Rapporteurs, many of whom do excellent work under very trying conditions.
The majority of the HRC (predominantly 14 Organisation of the Islamic Conference (OIC) and sub-Saharan African countries normally backed by Russia, China, Cuba and also Sri Lanka) are failing to protect freedom of expression, or are even actively impeding it. Evidence given in Section D.
Considerable and growing status is being accorded, especially by OIC members, to the Cairo Declaration of Human Rights in Islam and the Arab Charter of Human Rights. Given that both instruments fall short of the Universal Declaration of Human Rights (UDHR), this has the effect of shielding Human Rights abuses. Evidence to support this is given below, especially in Section F.
The HRC acts in a partisan manner. The HRC, as now constituted, effectively excludes discussion of, or even reference to, alleged abuses in Islamic countries. Yet it ensures that alleged abuses in the Occupied Territories by Israel - some of which, we would not deny, deserve strong criticism -- are highlighted and vociferously condemned on a regular basis. Further evidence of partisan behaviour shielding Human Rights abuses is provided in the section describing the misuses of the Universal Periodic Review elaborated in D 3).
We endorse the conclusion of the US Mission to the UN: ... "the HRC has not advanced the fundamental goal envisioned by the Charter of the United Nations of promoting universal respect for, and observance of, Human Rights and fundamental freedoms. In some ways the Human Rights Council is worse than its predecessor, the Commission on Human Rights (UNCHR). In 2005, the international community seemed to have reached a consensus on the need for a more credible body and one that could take more timely, effective action in the case of ongoing crises. But, what we have found is that, in some ways, the HRC is less able to take affirmative action, but is more willing to focus on Israel-bashing exercises". We also note that Professor Timothy Garton Ash has advocated investigating the formation of a caucus of liberal democratic states at UN level.
The resolution of these problems is hampered by:
(a) Low awareness about the ineffectiveness (to put it at its most charitable) of the HRC, even among those involved with Human Rights issues, because of poor publicity. We have even heard that senior U.N. officials, frustrated at the situation in the HRC, have been asking journalists to write more about what has been going on there to draw the general public's attention to it.
Concerns that the raising of awareness risks:
(i) heightening diplomatic tensions with OIC countries. Avoiding these will be the natural instinct of the many diplomats at the HRC, but those doing so will not always promote the cause of Human Rights. This systemic problem needs to be borne in mind in designing future structures.
(ii) being regarded as siding with powerful countries and/or
(iii) being branded as "Islamophobic". This latter view is more likely to be held by those who have allowed themselves to be persuaded that any examination of problems in OIC states or comments about Islam are likely to be denigrated as "Islamophobic", which the OIC is seeking to equate with racism.
As to the future, there seems little prospect of a culture emerging in the HRC which actively supports the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). The HRC was supposed to start with a clean slate, a Council whose members genuinely supported, and were prepared to defend, the principles of the UDHR. Like the US Mission (please see B 4), we do not believe the HRC has achieved this after its first two years of operation, and we fear it is currently drifting further away from doing so.
Former UN Secretary General Kofi Annan saw the writing on the wall three years ago when he spoke of the old [UNCHR] having "become too selective and too political in its work". Regrettably, the Council is showing every sign of outdoing its predecessor on that score.
1) Efforts should be made by all interested parties to publicise the plight of, and developments at, the HRC. Regular realistic formal assessments need to be made by the UK Government and other like-minded governments, NGOs and international groupings, and these need to be referred to in successive annual reports, especially those of the FCO on Human Rights:
a) as to the extent to which the HRC is adhering to the UDHR and ICCPR
b) whether the general direction is towards greater or lesser compliance
c) to set realistic objectives and timescales for improvement and
d) in the longer term, to decide whether the HRC continues to serve a useful purpose, or whether there is any alternative which could be expected to achieve greater success - bearing in mind the difficulties already encountered with the HRC's predecessor, the UNCHR.
2) Pending a material improvement in the HRC's performance, we hope that a coalition of liberal democracies will work together to establish how best to promote Human Rights on as broad a front as possible in the longer term.
3) We request the Government to make it clearer, both in the Human Rights report and in its foreign policy more generally, of the dangers of regionally-, religiously- or ideologically-based Human Rights instruments that fall short of, or even effectively undermine, the UDHR and ICCPR being accorded a status that could be mistaken as being equivalent to those documents, the international benchmarks for Human Rights which enshrine key individual liberties. The Cairo Declaration on Human Rights in Islam is, we believe, an example. (More information is given in Section F).
4) We request the Government to make it clearer, both in the Human Rights report and in its foreign policy, that Human Rights abuses are not made acceptable or any less unacceptable because they are or are claimed to result from religious dogma or cultural customs. Examples include:
a) capital punishment for apostasy and homosexuality which remain in some OIC states;
b) so-called honour killings;
c) any kind of torture and other cruel, inhuman or degrading treatment or punishment,
d) female genital mutilation (FGM), forced marriages, the subjugation of women, including lesser education for girls. (Even in the UK, cultural and religious sensitivities have led to a very low rate of prosecution for "honour" killings and forced marriages and to no prosecutions for FGM, even though it is acknowledged that these abuses do occur regularly.)
5) We request the UK and like-minded governments to make renewed efforts to seek out the perspectives of Human Rights activists and victims of alleged Human Rights abuses. It is those countries with the least enviable records that will go to the greatest lengths to misrepresent their situation.
6) We request the UK and like-minded governments to actively support the calls made in a joint representation to the UN Secretary General by Amnesty International and Human Rights Watch in an open letter about the need for the appointment of the successor to the UN High Commissioner for Human Rights to be a "Strong High Commissioner" selected by a "Transparent Selection Process". We add "and remain under the Secretary General's control".
D. SUBVERSION OF UNHRC PROCESSES - EXAMPLES (support for conclusion B1):
1) Attempts to muzzle Special Rapporteur on freedom of expression:
a) An amendment to a resolution on the mandate of the Special Rapporteur on Freedom of Expression was adopted on 28 March 2008 requiring the Rapporteur to report on the "abuse" of freedom of expression. It was passed by 32 votes in favour (mainly Islamic and African states with support from China, Cuba, Russia and Sri Lanka), no votes against, but 15 abstentions. More than 20 of the original 53 co-sponsors of the resolution withdrew their sponsorship. These included the European Union and the United Kingdom (speaking for Australia and the United States), India, Switzerland, Brazil, Bolivia and Guatemala.
b) As the Canadian delegation noted: "instead of promoting freedom of expression the Special Rapporteur would be policing its exercise". The mandate has been turned into an order to report on defamation of religion.
c) Freedom of expression is even more vital for those who live under regimes where there are serious and routine abuses of Human Rights. This was highlighted by a courageous group of around twenty NGOs from OIC States who issued a statement appealing to delegations not to support the amendment.
2) Some OIC countries are seeking to silence the contributions of NGOs - giving often the sole alternative view (and in some cases a more representative/more Human Rights-supporting perspective than that made by the countries seeking to silence them). This move is further evidence of a concerted intention to silence any alternative views, stopping them from being brought to the attention of the HRC (a concern already raised over defamation legislation) and if accepted would make it even less likely:
a) that those suffering Human Rights abuses in countries whose NGOs are muzzled in this way will receive support, and
b) that the perpetrators of such abuses will be exposed.
3) We have major concerns about the operation in practice of the Universal Periodic Review (UPR):
a) The expectation. The UPR was heralded as the major new instrument of the new HRC process. Human Rights Watch (HRW) agreed: "The review's greatest strength was to be its universality, with all countries facing scrutiny regardless of their region, size, or influence. Amnesty International described the UPR in April 2008 as the "key innovation of the Council ... intended to address one of the main criticisms of the [UNCHR] that its focus on a small number of country situations was selective and based on double standards." Amnesty pleaded with countries to be transparent and even-handed.
b) The outcome so far. So far, the UPR does not seem to be working in many of the countries where attention needs to be focussed most, according to HRW: "... But some council members politicized their approach and applied different standards to each country under review". HRW cited shameful examples of countries with major and systematic Human Rights abuses being congratulated by other countries, for example Tunisia and Algeria, where there are "crackdowns on peaceful dissent and free expression, and consistent and credible reports of torture and ill-treatment by members of the police and security forces". HRW concluded: "The review can only help to end abuses if states take their responsibilities seriously instead of hiding behind pleasantries." We endorse HRW's conclusion, and their own report illustrates that the problem though goes beyond evasive "pleasantries": taken to be code for countries being excessively tactful about their allies, or even for mutual agreements to overlook each other's abuses. The UPR can even be used in retaliation. When it came to the turn of Algeria (mentioned above) HRW notes it "gave a strong, detailed statement when the United Kingdom was reviewed, raising concerns over its rate of incarceration of children [followed by a long list of other alleged abuses]." We are not of course suggesting that the UK is or should be beyond criticism.
c) We ask if these failures have a wider implication. Ahead of the process, Amnesty International warned: "A credible and effective UPR mechanism is therefore critical to the credibility of the Council".
E. ATTACKS ON FREEDOM OF EXPRESSION THROUGH MOVES TO ENFORCE DEFAMATION OF RELIGION LAW
1) We take the unusual step of quoting, approvingly, from the Australian Evangelical Alliance website to illustrate that those of very different perspectives have come to very similar conclusions:
"The resolution was presented by Pakistan on behalf of the [OIC]. On 12 April 2005 the [UNCHR] passed the OIC-sponsored resolution entitled "Combating Defamation of Religions". According to that resolution the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance was to continue examining the situation of Muslims and Arab peoples in various parts of the world, monitor defamation of Islam, and report back to the Commission at its 62nd session (April 2006) and make recommendations to improve the situation.
"It was phenomenally convenient that the violent "Cartoon Intifadas" of February 2006, which erupted some five months after the controversial Danish cartoons were originally published, occurred only weeks before the UNCHR was due to reconsider the OIC's resolution on "Combating Defamation of Religion". You don't have to be too cynical to wonder if the OIC and Arab league sponsored not only the resolution but the Cartoon Intifadas as well".
2) We believe, as implied above, that the Danish cartoon crisis was manufactured and that protests against other challenging publications such as the Dutch film Fitna are fomented in order to exploit sensitivities around racial discrimination and to promote (or even exaggerate) the notion of "Islamophobia" in order to restrict possibilities for open discussion and criticism of Islam. This approach not only wrongly equates criticism of religion with racism but has been used to divert attention from the very real Human Rights abuses carried out in the name of Islam in many OIC countries. UN institutions including the HRC have become the forum through which such objectives are pursued through measures calling for legislation banning "defamation of religion" - legislation which aims to remove religion, especially Islam, from public scrutiny and democratic debate.
3) Blasphemy law is already extremely harsh, and sometimes a capital offence, in a number of OIC countries and is used to persecute those of the "wrong" faith (such as Christians or Ahmadis) or none, and misused in many countries to silence dissenters or personal enemies. We know from personal experience of colleagues in Pakistan that it can be notoriously difficult for those prosecuted to obtain a fair trial. The introduction of defamation of religion legislation would lead directly to an increase in such problems, and have a devastating effect on freedom of expression - including a substantial increase in self-censorship.
4) Resolutions on defamation of religions were first introduced in 1999 in the old UNCHR. They have been a priority of the 57-nation OIC since the events of 11th September 2001, and have been passed several times since, although we accept that the resolutions are not binding.
5) While we note that the latest resolution on Combating Defamation of Religions relates to "defamation of all religions", it refers to "Islam and Muslims in particular". While it concedes that "everyone has the right to...freedom of expression", it adds that "the exercise of these rights carries with it special duties and responsibilities and may therefore be subject to limitations as are provided by law".
6) We accept that Freedom of Expression is not absolute, being normally subject to restrictions for reasons of public order and national security. However the resolution appears to make the limitations practically open-ended. Our concern on this point is heightened by the current practice in many OIC states that requires that respect be shown for religion, and this requires extensive restriction of freedom of expression. Even relatively mild criticism of religion or denial of its tenets is not permitted.
7) Defamation legislation would favour the promulgations of extreme religious views while restricting the ability of detractors to express their, often more Human Rights-centred, opinions.
8) The passing of the resolution demonstrates the significant power of the Islamic states within the Human Rights Council. It is not clear why the resolution is on defamation of religions, whereas the only religion actually mentioned by name is Islam. Emphasis is given to victimhood suffered by Muslims, but is silent on Human Rights abuses and intolerance by any OIC states.
9) Some indication of the extent of pressure being applied by some OIC states, and by religious leaders on judicial authorities, comes from a Reuters news report of 19 March 2008 bearing the headline "Saudi clerics back death fatwa for liberal writers". The report refers to a very senior cleric in Saudi Arabia having issued a fatwa that "two writers deserve to die if they did not retract views". The cleric reportedly claimed they had "questioned the Sunni Muslim view in Saudi Arabia that adherents of other faiths should be considered unbelievers". This he claimed "implied Muslims were free to follow other religions and their faith was on a par with other religions". Twenty other clerics have supported their leading colleague adding that: "The Sheikh's words were clear in placing the issue in the hands of the temporal authorities when he said that there must be a trial. We affirm there should be a trial." A Saudi opposition figure is quoted as saying "This is in my view the largest show of force in the Wahhabi movement in a long time." The more defamation of religion laws there are, the more they will be used in this way.
10. Press reports suggest that the OIC is now making renewed representations to the Inter-Parliamentary Union to press legislators throughout the world to bring in laws against the defamation or criticism of religion. They follow numerous proposals in OIC countries along similar lines. More information will be provided on request to Committee or FCO.
11) On the other hand, there are Muslim organisations, or organisations in Muslim countries, with entirely opposing views whose analysis we believe deserves to be considered carefully. This suggests that careful studies should be undertaken to establish how representative the hard line of the OIC is of all Muslim opinion, or of the spectrum of opinion in OIC countries. Otherwise there is a heightened danger of depriving minorities in OIC countries of their Human Rights.
The Muslim Canadian Congress, for example, "expressed shock and disappointment at the move by Islamic countries to bulldoze the [UNHRC] into approving a resolution curtailing freedom of speech under the guise of protecting religion". It described the amendment as "nothing more than a cover to silence opponents of Islamist oppression inside Muslim countries, as well as in the West. ... instead of protecting the right to freedom of conscience and religious expression, [it] will become a tool in the hands of Iran, Saudi Arabia and the world jihadi movement to strike fear among the opponents of Islamic extremism." We also draw attention again to the dissident NGOs' statement - please see paragraph D 1)c).
F. DANGER OF REGIONALLY-, RELIGIOUSLY- OR IDEOLOGICALLY-BASED HUMAN RIGHTS INSTRUMENTS
1) The Cairo Declaration on Human Rights in Islam, which was ratified by the OIC in 1990, effectively gives Shariah precedence over provisions similar to the UDHR, and is therefore incompatible with the UDHR. The status of the Cairo Declaration is being promoted by the OIC and we are convinced that it is the intention to make it at least equal in status to the UDHR, at least in OIC countries. This would increase the likelihood of activities contrary to the UDHR being shielded from scrutiny, thereby exposing in many cases those in the world most in need of protection. This leads to our recommendation C3).
2) We also draw attention to the Arab Charter on Human Rights. As UN High Commissioner for Human Rights, Louise Arbour, said in a statement dated 30 January 2008: "Throughout the development of the Arab Charter, my office shared concerns with the drafters about the incompatibility of some of its provisions with international norms and standards. These concerns included the approach to the death penalty for children and the rights of women and non-citizens. Moreover, to the extent that it equates Zionism with racism, we reiterated that the Arab Charter is not in conformity with General Assembly Resolution 46/86, which rejects that Zionism is a form of racism and racial discrimination. OHCHR does not endorse these inconsistencies".
3) We draw attention to the press coverage[i] of UN High Commissioner for Human Rights, Louise Arbour, disturbingly welcoming the Charter, and then recanting it. She has now resigned and we make a comment below about the appointment of her successor. (Please also see our recommendation C 5) concerning the appointment of a new UN High Commissioner for Human Rights.)
22 April 2008
 Statement by U.S. Permanent Representative Zalmay Khalilzad, in USUN Press Release # 075(08) on 8 April 2008 http://www.usunnewyork.usmission.gov/press_releases/20080408_075.html
 Juliette de Rivero, Geneva advocacy director at Human Rights Watch, 18 April 2008 http://hrw.org/english/docs/2008/04/18/global18606.htm