Article written by Arie de Pater, IIRF European Representative.
Recently, several Quran’s have been burnt or desecrated in Denmark and Sweden. Some claim that these acts are violations of the right to Freedom of Religion or Belief (FoRB) and incitement to hatred, while others argue that these acts are protected under the right to Freedom of Expression. Do we need new laws to regulate public protests that could hurt religious feelings? Or should we accept these protests as part of our multicultural societies?
Freedom of Thought, Conscience, and Religion, Freedom of Expression, and Freedom of Peaceful Assembly are important pillars of any democratic society. Limitations of these rights should be the exception rather than the rule.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) declares that Freedom of Expression comes with certain duties and responsibilities. It can be “subject to some restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; and (b) For the protection of national security or of public order (ordre public), or of public health or morals.
Article 20 then calls for a legal ban on advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
Freedom of expression is not limited to words but can take many forms. It covers many ways to convey a message. That could even include the burning of books.
In the famous ruling Handyside v the United Kingdom, the European Court of Human Rights declared that Freedom of Expression includes opinions that can “offend, shock or disturb the State or any sector of the population.” The burning of books deemed sacred by some, can definitely shock and disturb a sector of the population. It might fuel negative feelings toward certain authors, ideologies, or religions but even if they do, they do not meet the definition of incitement to hatred.
The Rabat Plan of Action provides six criteria for hate speech: context, speaker, intent, content and form, extent of the speech act, and likelihood including imminence. Under intent, the threshold test emphasises: “Negligence and recklessness are not sufficient for an act to be an offence under article 20 of the ICCPR, as this article provides for “advocacy” and “incitement” rather than the mere distribution or circulation of material.” The criterion ‘extent of the speech act’ includes reach, means, and frequency, and whether the audience had the means to act on the incitement.
Although throughout history the burning of books has been a sign of utter contempt, the burning of a Quran or any other holy book for that matter, in and of itself does not meet any of the thresholds of the Rabat Plan of Action. The context of the act, and the content of any accompanying speech could meet the thresholds but that’s another matter.
Based on the Rabat threshold test, there is no ground for a ban on the burning of holy books. That’s not to say that we support the burning of objects that are deemed sacred to a sector of society, but the act itself cannot be banned with a reference to fundamental rights.
In practice, a ban on the burning or desecration of sacred objects would eventually burden judges with deciding what is a sacred object and what isn’t. Any object could be sacred in the eyes of the beholder. But even a Muslim’s relation to the Quran, or a Jew’s relation to the Thora, is different from a Christian’s relation to the Bible. And what about the Hadith, the Talmud, and other religious texts? Should they qualify as sacred? Therefore, a ban on the burning or desecration would not only be a limitation of Freedom of Expression but also quite difficult to codify and enforce.