Chapter 10: The right to offend, shock and disturb

SHARING thoughts and beliefs is a natural human activity. Without people trying out ideas, expressing opinions and others disagreeing, civilisation would scarcely have moved beyond the Stone Age. It is not enough, therefore, simply to say that we are all entitled to our own thoughts so long as we keep them to ourselves; we also need to be allowed to express them and, sometimes, to do so in conjunction with others. The rights to freedom of thought and belief, to freedom of expression and to freedom of association are inter-linked and they are grouped together consecutively in articles 18, 19 and 20 of the Universal Declaration of Human Rights.

Unlike freedom of belief, freedom of expression and freedom of association are not considered absolute rights, because exercising them can sometimes interfere with the rights of others. It may therefore be necessary, on occasions, to impose some restrictions in order to strike a balance between competing rights. According to the International Covenant on Civil and Political Rights, though, such limitations should be kept to a minimum. For example, it says that any restrictions on freedom of expression must not only be specified by law but must also be necessary in order to respect the rights or reputations of others or to protect national security, public order, public health or morals.

In the view of the European Court of Human Rights, the demands of pluralism, tolerance and broadmindedness are so great – at least, in democratic societies – that freedom of expression should be protected even when it causes offence. In a landmark ruling in 1976, the court decided that freedom of expression applies not only to ideas “that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population”.^[i]

This is a view that most Arab governments and many Muslims flatly reject. As far as they are concerned, religious people need to be protected from remarks that cause them offence or expose them to ridicule. Had this been applied in the past, it would have required the imprisonment of many of the most important thinkers and writers in Islamic history. Trying to apply it today results in all sorts of discriminatory practices and, since all that is required is for someone to claim they have been offended, creates opportunities for score-settling, either through the courts or on the streets, and often over extremely trivial matters.

A few years after the European Court gave its ruling on the right to offend, a Muslim organisation known as the Islamic Council of Europe was pushing in the opposite direction. In 1981 it issued the Universal Islamic Declaration of Human Rights which said, among other things, that no one should be allowed to “hold in contempt or ridicule the religious beliefs of others”, “incite public hostility against the religious beliefs of others” or “disrespect the religious feelings of others”.^[ii] In other words, the Islamic Declaration sought to give specially-protected status to religious beliefs as distinct from other forms of belief. Replace the word “religious” in the declaration with “political” and the problems become more obvious: the effect on public debate would be stifling. With unintended irony, the Islamic Declaration also sought to prohibit the dissemination of “falsehood” – in which case atheists might well argue that religion itself would have to be banned.

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Arabs Without God is available in paperback from Amazon (US) or Amazon (UK). It is also available in Arabic (online, free of charge) and in Italian under the title Arabi Senza Dio.

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Between 1999 and 2011, mainly at the behest of Muslim countries, the UN General Assembly, the UN Commission on Human Rights and its successor, the Human Rights Council, passed a series of resolutions to combat “defamation of religions”. These resolutions, which were often criticised as interfering with free speech, can be seen partly as a reflection of international politics at the time: a response to growing prejudice against Muslims in general, especially in the west, the stereotyping Muslims as terrorists, etc – but in terms of addressing that problem they were mis-directed and ill-conceived.

“The very concept of defaming religion is unclear and lacks a sufficient basis in international law,” Article 19, an organisation that defends freedom of expression, complained. “Defamation, in its ordinary meaning, refers to unwarranted attacks on one’s reputation. Religions, like other beliefs, cannot be said to have a reputation of their own.” Quoting a UN Special Rapporteur, it noted that in international law protection of reputation is “designed to protect individuals, not abstract values or institutions”.^[iii]

International law addresses religious and other forms of prejudice mainly in terms of hate speech. The International Covenant on Civil and Political Rights, for example, calls on governments to prohibit “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. Article 19 continued:

While it is appropriate to sanction certain forms of hate speech, limiting debate about contentious issues, including religion, will not address the underlying social problems of prejudice that undermine equality. Instead, open debate about these issues is needed to expose the harm created by prejudice and to combat negative stereotypes.

In 2009, three UN Special Rapporteurs issued a joint statement which reinforced this point:

We should never lose sight that our ultimate goal is to find the most effective ways through which we can protect individuals against advocacy of hatred and violence by others. Hate speech is but a symptom, the external manifestation of something much more profound which is intolerance and bigotry. Therefore, legal responses, such as restrictions on freedom of expression alone, are far from being sufficient to bring about real changes in mindsets, perceptions and discourse.

To tackle the root causes of intolerance, a much broader set of policy measures are necessary, for example in the areas of intercultural dialogue or education for tolerance and diversity.^[iv]

They added that these policies should include strengthening freedom of expression rather than restricting it: “The strategic response to hate speech is more speech”. The rapporteurs also cautioned against viewing “defamation” of religion as equivalent to racism. “The elements that constitute a racist statement may not be the same as those that constitute a statement ‘defaming a religion’ as such,” they said. “To this extent, the legal measures, and in particular the criminal measures, adopted by national legal systems to fight racism may not necessarily be applicable to ‘defamation of religions’.”

At a purely practical level, a UN study found, national laws protecting religion fail to safeguard the religious rights of individuals, stifle debate that can be “constructive, healthy and needed”, and are often applied in a discriminatory manner by favouring whichever religion happens to predominate in any particular country:

There are numerous examples of persecution of religious minorities or dissenters, but also of atheists and non-theists, as a result of legislation on religious offences or overzealous application of laws that are fairly neutral.

Moreover, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or a belief that is free from criticism or ridicule.^[v]

A further point to note is that in many countries religious leaders and institutions wield significant power and influence that goes well beyond straightforward matters of faith. It is therefore not in the public interest to have laws that protect them from scrutiny and criticism.

At the UN Human Rights Council, support for protecting religions from “defamation” gradually waned and in 2011 the council approved a resolution which did not mention “defamation”, “vilification” or “denigration” of religions at all. Instead, it talked more constructively about ways of combating intolerance, negative stereotyping, stigmatisation, discrimination, incitement to violence, and actual violence against persons based on religion or belief. The resolution, put forward by Pakistan on behalf of the Organisation of the Islamic Conference, was accepted without a vote.^[vi]

At the international level this was a significant victory for free expression, but as far as the Islamic countries were concerned it was probably due more to a recognition that they were outnumbered in the council than to a change in their views. At a national level, it made little impact and some countries moved the other way.

Tunisia, for example, had been relatively secular during President Ben Ali’s 23 years in power though freedom of expression was severely curtailed. The popular uprising that overthrew Ben Ali in January 2011 created an opening for both secularist and ultra-religious elements. On the religious side, militants described as Salafis sought to impose their own version of Islam, attacking Sufi shrines (which they regarded as idolatrous) and events organised by Shia Muslims. They also attacked some hotels and individuals selling alcohol and harassed the Russian Orthodox Church. Five people, including a police officer, were arrested for allegedly plotting to kidnap Jews.

The post-revolution authorities in Tunisia seemed unsure how to respond or were perhaps reluctant to do so. “Government investigations of attacks on religious sites resulted in arrests and prosecutions in only a minority of cases,” the US State Department reported. The authorities were also accused of providing inadequate security for Christian and Jewish places of worship, and of failing to protect Sufi sites. They did, however, take steps to remove “divisive” imams from some of the mosques, including Salafi imams.

In October 2011, Nessma, a privately-own Tunisian TV channel, broadcast Persepolis – an animated film which had won a prize at the Cannes festival and had previously been shown in Tunisian cinemas without much fuss. Based on an autobiographical graphic novel by Marjane Satrapi, it depicts the last days of the Shah and Iran’s 1979 Islamic revolution through the eyes of a young woman. In one short scene she imagines herself talking to God, who is shown as an old man with a white beard.

In Islamic teaching, depictions of God are generally regarded as idolatrous, and a group of around 300 protesters reportedly attacked the TV station and attempted to set it on fire. The station’s owner, Nabil Karoui, was later fined 2,400 dinars ($1,500) for “disturbing public order” and “threatening public morals”. Two of his staff were also fined. Prosecutors had been seeking a prison sentence, and at least two Islamist lawyers had called for the death penalty: “Anything related to God is absolute,” one of them told the Washington Post.^[vii]

Commenting on the trial, Amnesty International accused the Tunisian government of a “lack of will” to defend free expression. “While protecting public morals or public order may sometimes be a legitimate reason for restricting freedom of expression, such restrictions may only be imposed if absolutely necessary. This is clearly not the situation … people should not be convicted and sentenced for their views, even if these views are seen as controversial or offensive,” a spokesperson said.

Around the same time, two Tunisian atheists were each sentenced to seven-and-a-half years in jail and fined 1,200 dinars ($800) after posting material on the internet that was deemed “liable to cause harm to public order or public morals”. Jabeur Mejri and Ghazi Beji, both in their late twenties, were friends from Mahdia, a coastal area south of Monastir, and apparently quite well known locally for their atheistic views.

Mejri had written several short books which could be downloaded from the internet. One of them, mainly about sex and its effects on health, mentioned various sexual practices including homosexuality, which it said is increasingly accepted “in open minded regions”, and paedophilia, which was accompanied by a cartoon showing “The Prophet Muhammad aged 50 trying to seduce Aisha aged six”. The shape of the Prophet’s robe in the drawing suggested very clearly that he was sexually aroused. Another of Mejri’s self-published books, called Guidance and Light, began with this question:

Is it possible that the Muslim Qur’an is nothing more than an entire book of Satanic lies and verses that “tickle the ears” of Arabs?

None of this appears to have caused a fuss at the time but a lawyer in Mahdia, Fouad Sheikh Zouali, took exception to some images on Mejri’s Facebook page and asked him to remove them. Mejri refused. Zouali then filed a lawsuit against Mejri, who was duly arrested.

Meanwhile, Ghazi Beji was concerned for his friend and went to check the court file about the case – only to discover that he himself was named as a co-defendant. He fled the country before he could be arrested, and was tried and convicted in his absence.

Beji travelled to Algeria and Turkey before sneaking illegally into Greece, where he told an atheist website that his views on Islam had started to cause problems while he was at university. After graduating in 2007, he could not find work to suit his qualifications so he took a job selling tickets for the Tunis metro. Colleagues taunted him when they learned of his atheism and he was eventually fired “due to the numerous accusations of heresy”. He was fired from another job in a factory, according to the website, after colleagues noticed he was not fasting during Ramadan and began questioning him about why he did not pray or read the Qur’an. They nicknamed him Abu Lahab  – after an uncle of the Prophet who was an early opponent of Islam and has the rare distinction of being cursed by name in the text of the Qur’an (sura 111). Rumours also circulated at work about Beiji’s sexuality. When summoned by the management and questioned about his religious views, he said he had come to the factory to work and his religion was not relevant.^[viii]

In 2011, Beji had spent four months recovering from a knee operation and used the time to write a book in Arabic called Wahm al-Islam (“The Illusion of Islam”) which he self-published on the internet – thinking, as he told the atheist website, that after the Tunisian revolution he was living “in a new era”. One of Beji’s chapters included reproductions of four cartoons: two of them associating Muslims with terrorism and one showing a pig labelled “Muhammad” writing in a book labelled “Qur’an”. The fourth was the cartoon of Aisha and the sexually-aroused Prophet which had also appeared in Mejri’s book on sex.

Zouali – the lawyer who initiated the case – said he considered insulting the Prophet to be a more serious crime than murder. “This affair has nothing to do with freedom of expression, or with freedom at all,” he told the Tunisian website Nawaat. “I hope that the new constitution will institute a serious penalty for this kind of crime in order to protect religion and the feelings of Tunisian Muslims.”

Beji’s father told Nawaat that as a result of the trial he was thinking of selling his house because the family had been shunned by neighbours. “I go to a mosque in a neighborhood far away and I can’t spend time in the cafe any more,” he said. “In court, they warned us not to contact any journalists or human rights groups and that if we did the public opinion against us might be violent.” He added that his son had received death threats from Salafis and his wife had received a message that Mejri would not escape the Salafis’ punishment, even in prison. The imam of one of the largest mosques in Mahdia told Nawaat that while he was not responsible for the threats, he considered Mejri’s “crime” unpardonable. “We cannot blame Muslims who are offended if they react violently,” he said.

Following an international campaign on his behalf, Mejri received a presidential pardon and was released in March 2014 – exactly two years after his arrest. Beji was eventually granted asylum in Romania.

In June 2012, disturbances over a contemporary art exhibition in Tunisia left 100 people injured and 160 under arrest, with a night-time curfew imposed on eight regions of the country. At the centre of this trouble was the Printemps Des Arts [Springtime of the Arts] fair in La Marsa, a chic seaside town on the outskirts of Tunis which serves as a summer retreat for wealthier Tunisians. The ten-day show, authorised by the Ministry of Culture, featured a large number of artists and was aimed mainly at a liberal/secular crowd.

On the eve of its opening a small group of Salafis turned up, apparently to protest, but they left after discovering that it was not – as they had thought – an event celebrating homosexuality. The show then continued normally until it was about to end. Héla Ammar, one of the exhibitors recalled:

Everything went well until the closing day, when a local official came to assess certain paintings that he personally found shocking. According to his own testimony [in a television interview], he also shared the images online, adding his own interpretations and warned imams in certain mosques of their supposedly blasphemous nature.^[ix]

A video circulated on the internet urged “all followers of Islam” to “rise in anger” and about 20 protesters arrived – as well as a larger number of the exhibition’s supporters who had been summoned by the organisers. After some heated discussion, police separated the two groups peacefully and also removed a few of the more controversial artworks on the grounds that this would reduce the tension.

Later that evening, however, a much larger group of protesters assembled to march on the exhibition. One witness reported seeing hundreds of people, some brandishing swords, who turned on a small contingent of police: “They were throwing rocks at the police. I was very afraid. I ran to the car and locked the door.” Some of them gained entry to the building, slashing at least two paintings and throwing one piece of sculpture on to the roof. A large installation was removed from the courtyard and taken outside to be burned. Among the graffiti daubed on the walls, one said “Let God be the judge”, and another said: “Tunisia is an Islamic state; with the licence of the Ministry of Culture, the Prophet of Allah gets insulted.” Some of the artists also received threatening and abusive messages after their names were listed on Facebook.

There’s no doubt that much of the art on display was provocative and ridiculed extreme forms of Islam. One showed a Superman figure in a Salafi-style beard, cradling another bearded man in his arms. Another showed an angry, bearded face with steam coming out of the ears. A naked female figure, with a plate of couscous covering her private parts, was seen surrounded by dark and menacing male figures. A sculpture had statues of three veiled women buried up to their chests with stones. One artwork depicted lines of ants creeping into a child’s schoolbag. The formation of the ants sarcastically spelled “Subhan Allah” (“Glory to God”) in Arabic. Another piece incorporated a crescent, a cross and a Star of David with the words: “République Islaïque de Tunisie” – “Islaïque” being a made-up term combining “Islam” with “laïque”, the French word for “secular”.

In Héla Ammar’s view, however, the artists had become scapegoats in a bigger struggle over the future of Tunisia. She told al-Jazeera:

This affair has been entirely manufactured to eclipse more serious issues. We are in the middle of a war between several political movements, with the Salafists and other reactionary movements which are pressuring the present government against moderation and appeasement.

The debates over identity and religion are false problems which distract from a precarious security situation, grave economic and social problems that have not yet been resolved, and a transitional justice system which is proving difficult to set up ...

Under Ben Ali, we suffered most of all from self-censorship when it came to tackling political subjects. Now, the censorship is based on religious and moral questions, which has made things even worse.

The Printemps des Arts affair led to calls for a new Tunisian law to protect “the sacred”. Nessma TV and the two atheists had been prosecuted under existing laws from the Ben Ali era – laws which the previous regime had often used against its political opponents. Ennahda, the religious party dominating the Constituent Assembly, complained about the lack of a law specifically dealing with blasphemy – “Religious symbols are above all derision, irony or violation,” it said in a statement – and it later introduced a draft law listing God, prophets, the Qur’an, Bible and Torah, the Sunnah (the sayings and teachings of the Prophet Muhammad), churches, synagogues, and the Kaaba in Mecca as sacred. “Cursing, insulting, mocking, undermining, and desecrating” any of these symbols could lead to a two-year jail term and a fine of 2,000 dinars fine ($1,265P). The bill also proposed to forbid pictorial representations of God and prophets.

The plan was later dropped following representations from Tunisian and international civil society groups. One of the objectors, Article 19, complained that the draft violated international human rights standards and left “far too much discretion to the police and judiciary to decide what behaviour constitutes an ‘insult’ or ‘mockery’ of sacred values.” ^[x]

Laws against blasphemy

“BLASPHEMY” is a broad term used in a religious context to describe any display of contempt for sacred figures and things. It is derived from a Greek verb, blasphemein – “to speak evil of” – but in Arabic several different words may be used: sabb (insult), shatm (vilification), la’an (cursing), takdhib (denial), and more. Sometimes in Islam, blasphemy is considered a form of apostasy.

Arab states use a variety of mechanisms, either separately or in combination, to prevent unwanted discourse about religion. Aside from the sharia, these can include constitutional declarations giving Islam privileged or protected status, specific laws against blasphemy and general laws about public order, media, telecommunications, etc, which can be applied to blasphemy. This protection of religion is often combined with laws against what might be called “secular blasphemy” – anything that violates the “sanctity” of the state by damaging the country’s reputation, insulting the head of state, defaming government officials and the military, spreading “false” news, and so on. In Algeria, for example, the constitution combines religion with the political system by forbidding “practices that are contrary to the Islamic ethics and to the values of the November Revolution”. Morocco’s 2002 media law prohibits criticism of “Islam, the institution of the monarchy, or territorial integrity”.

Oman, Qatar and the United Arab Emirates all have specific anti-blasphemy laws with established penalties. In Oman, it is a criminal offence to defame any faith and the maximum penalty for inciting religious or sectarian strife is ten years’ imprisonment. Sentences of up to three years and a fine of 500 rials ($1,300) are prescribed for anyone who “publicly blasphemes God or His prophets”, commits an affront to religious groups by spoken or written word, or breaches the peace of a lawful religious gathering. Use of the internet in ways that “might prejudice public order or religious values” is an imprisonable offence. In Qatar, the penalty for defaming, desecrating, or committing blasphemy against Islam, Christianity, or Judaism is up to seven years in prison. The law also provides a one-year sentence or a fine of 1,000 riyals ($275) for producing or circulating material that defames these three religions. In the UAE, offenders can be fined, imprisoned or deported for swearing, profanities, insults, and all types of vulgar language and behaviour. The law also imposes penalties for using the internet to preach against Islam, proselytise Muslims, “abuse” a holy shrine or ritual of any religion, insult any religion, and incite someone to commit sin or contravene “family values”.

Although most Arab countries seek (at least on paper) to protect Christianity and Judaism along with Islam – since all three are monotheistic faiths – non-Abrahamic religions are not usually protected and the penalties for attacking Islam are sometimes higher than for attacks on Judaism and Christianity. In Yemen, for example, the maximum sentence for “ridiculing” religion is longer if the religion concerned is Islam.

Several countries have special provisions in their media laws to protect religion. Yemen’s Press and Publications Law, for example, prohibits:

Anything that prejudices the Islamic faith and its lofty principles or belittles religions or humanitarian creeds;

Anything that might cause tribal, sectarian, racial, regional or ancestral discrimination, or which might spread a spirit of dissent and division among the people or call on them to apostasies;

Anything which leads to the spread of ideas contrary to the principles of the Yemeni Revolution, prejudicial to national unity or distorting the image of the Yemeni, Arab or Islamic heritage.

Jordan, meanwhile, outlaws material that slanders or insults “founders of religion or prophets” or shows contempt for “any of the religions whose freedom is protected by the constitution”, with a possible fine 20,000 dinars ($28,000) for offenders.

In 2016, Jordanian writer Nahed Hattar was shot dead as he arrived at the Palace of Justice in Amman to answer charges of “insulting religion” and inciting “sectarian strife and racism”. Hattar was a controversial figure – a leftist critic of Jordan’s neo-liberal economic policies and a supporter of the Assad regime in Syria – who had been arrested for sharing a cartoon on Facebook.

The cartoon poked fun at Abu Saleh, a prominent Iraqi financier of the Islamic State (ISIS/Daesh) who had earlier been reported killed. The drawing purported to show Abu Saleh after his arrival in heaven – in bed with two women inside a tent. One of the women was smoking, and food and wine were strewn around the tent. A figure representing God appeared at the entrance of the tent saying in Arabic: “Good evening, Abu Saleh, do you need anything?” To this Abu Saleh replied: “Yes Lord, get me a glass of wine and tell Gabriel to bring me some cashews. After that, send me an immortal servant to clean the floor, and take the empty plates with you. Don’t forget to put a door on the tent so that you know to knock before you enter next time, your Majesty.”

In the ensuing furore Hattar, a non-believer from a Christian background, removed the cartoon and apologised, saying he had not intended to insult Islam but to attack the religious attitudes of ISIS. His relatives later complained that despite calls on social media for him to be killed or lynched, the authorities had failed to protect him. After the shooting on the courthouse steps it was Hattar’s family, rather than the police, who initially apprehended the killer.^[xi] Riad Abdullah, a 49-year-old imam, was later executed for the murder.^[xii]

Kuwaiti law imposes jail sentences for journalists who defame any religion or denigrate religious figures, and private citizens are allowed to bring criminal charges against suspected offenders. An “emergency” decree issued by the emir in 2012, known as the National Unity Law, extended the law to include social media and also greatly increased the penalties. Offenders can be jailed for up to seven years and fined up to 200,000 dinars ($720,000). However, the government resisted pressure from parliament to introduce the death penalty for Muslims who blaspheme.

Paradoxically, only a small proportion of blasphemy cases in the Arab countries involve atheists and unbelievers. Mostly, they are the result of quarrels between Muslims, between Christians and Muslims, between Sunni Muslims and Shia Muslims, or simply a case of people pursuing grudges. Often, it’s impossible to know exactly what the offender said, since the words cannot be repeated in newspaper reports. Above all, many of the cases that go to court are extraordinarily trivial and sometimes purely vexatious.

In 2013 Musab Shamsah, a Kuwaiti teacher, was jailed for five years over a tweet about the theological role of imams which was deemed to have insulted religion. Shamsah denied the accusation, claiming that his tweet – which mentioned the Prophet’s grandson and apparently referred to theological differences between Sunni and Shia Islam – had been misinterpreted. According to his lawyer, he had deleted the tweet ten minutes after posting it and clarified what he meant in two subsequent tweets. On the specific charge of mocking religion, which was brought under Article 111 of Kuwait’s penal code, Shamsah received the maximum sentence of one year. But the court added a further four years for publishing offensive material contrary to the National Unity Law and for “misusing” a mobile phone – since he had posted the offending tweet from his phone.

In the Algerian city of Biskra, 26-year-old Samia Smets was sentenced to ten years’ imprisonment – the maximum allowed by the law – for desecrating the Qur’an. She was already in jail (over a civil matter) at the time of the alleged offence and was accused by other prisoners of having torn a copy of the holy book. Smets, who was not legally represented in court, denied tearing it and said she had accidentally dropped the book in water during an argument. A year later, a judge hearing her appeal overturned the conviction for lack of evidence – including the prosecution’s failure to produce the supposedly torn Qur’an.

In Egypt during the first couple of years after the fall of the Mubarak regime, at least 17 cases alleging contempt of religion were filed with the courts – many of them rooted in Christian-Muslim rivalries. In one case, a female Coptic teacher was summoned for interrogation and detained overnight after students accused her of offensive remarks in class about the Prophet Muhammad. In another case, a Muslim preacher went on trial for destroying a copy of the Bible during a protest against the 14-minute video, Innocence of Muslims.

One of the most bizarre Egyptian cases involved two Coptic Christian boys, aged nine and ten, who spent fifteen days in juvenile detention after being accused of urinating on pages of the Qur’an. The boys, living in a mixed Muslim/Christian village were said to have been seen taking the pages behind a mosque where they committed the alleged offence. A neighbour told the Associated Press the boys were illiterate and could not have recognised the pages as coming from the Qur’an.^[xiii]

In cases such as these it seems that blasphemy can be committed even if it exists only the mind of the beholder. There is no evidence that the Egyptian boys, the Algerian prisoner or the Kuwaiti tweeter actually intended to show contempt for religion. Given the context of these three cases – sectarian tensions in Egypt and Kuwait, and an argument among prisoners in Algeria – questions might also be raised about the motives of the accusers. Often, there seems to be a “Gotcha!” factor at work, where those who complain are not so much offended as delighted to have found something they can pin on the person they are accusing.

In 2005 Jyllands-Posten, a Danish newspaper, published some offensive cartoons depicting the Prophet Muhammad – triggering a campaign which led to worldwide protests by Muslims several months later. Yemen was one of the countries where thousands of demonstrators took to the streets and shops announced they were refusing to sell Danish products. The Yemen Observer, an English-language weekly, reported these protests along with an editorial comment and tiny reproductions of three of the offending cartoons – each partly obliterated with a thick black X.

A week later Mohammed al-Asadi, the paper’s editor, was arrested on charges of offending Islam. Prosecution lawyers called for the execution of Asadi, the closure of the Yemen Observer and confiscation of its assets. The government suspended the paper’s licence and it was unable to print for more than six months, though staff continued to publish on the internet.

According to Asadi, the real problem was not the cartoons (which the paper had condemned) but an editorial which had annoyed hardliners by calling for Muslims to accept Danish apologies and act with “calm and dignity”. However, prosecution lawyers and the Yemeni attorney-general insisted that the charges rested on the images alone, and neither the news report nor the editorial could be used in evidence.

As mentioned earlier, Arab legal systems sometimes provide opportunities for citizens to involve themselves in court cases if they happen to have an axe to grind, and the Yemen Observer trial was no exception. Abdul Majeed al-Zindani, the erstwhile friend of Osama bin Laden who had been listed by the US as a Specially Designated Global Terrorist, who in the 1980s had tricked western scientists into endorsing the Qur’an’s “scientific knowledge” and who later announced that he had discovered a cure for HIV/AIDS, joined the legal fray with a massive claim for damages, alleging that reproduction of the cartoons had violated Muslims’ civil rights. Zindani’s claim was eventually dismissed but the court fined Asadi 500,000 rials ($2,320), saying that he had handled the cartoons “inappropriately”.

Continuing ‘misconceptions’

ABUSES of this kind are bound to continue unless governments can be persuaded of the need to tackle them. Arab governments are among the worst offenders and in most cases mending their ways is not simply a matter of changing laws and policies – it requires a fundamental change in ideology.

The 2011 resolution by the UN Human Rights Council (known as Resolution 16/18) was an important landmark, at least on paper.^[xiv] It formally shifted the international focus away from the problematic concept of “defamation” of religions and towards combating intolerance, negative stereotyping, stigmatisation, discrimination, incitement to violence and actual violence against people, based on their religion or belief.

Six years on, a UN special rapporteur described implementation of the resolution as slow, and noted “increasing reports of state actions that are incompatible with the right to freedom of religion or belief ... increasing scrutiny of religious groups on the grounds of national security, and growing societal intolerance of religious minorities in a range of countries and regions”. He also accused “some states” (unnamed) of resurrecting old arguments about whether the solution to intolerance lies in strengthening the enjoyment of fundamental human rights or in limiting them. Continuing violations demonstrated “a wide range of misperceptions and misconceptions” about the right to freedom of religion or belief, which he attributed partly to “the complexity of this right” and partly to “political and ideological dispute over the norms of the international legal framework”.^[xv]

The rapporteur – Ahmed Shaheed, a diplomat, politician and rights expert from the Maldives – then went on to counter ten “common misperceptions”:

1. The right to freedom of religion or belief is not designed to protect “religions, convictions, belief systems or truth claims”; it protects individuals.

2. Individuals, if they wish, have the right to publicly manifest their religion or belief, alone or together with others. This right “is not contingent upon recognition or registration by the state”.

3. The right to freedom of religion or belief must be construed broadly, “covering theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief”.

4. “There cannot be a meaningful right to freedom of religion or belief unless it includes the freedom to change one’s religion or belief.”

5. Violations can occur indirectly, for example if there are “limitations on access to education, medical care or employment, or family law matters, such as custody of children, which have the ultimate effect of impairing the individual’s ability to freely hold, adopt or change his or her religion or belief”.

6. The right to freedom of religion or belief also includes “belief-related life”, such as “the right to freely, and without undue burden or unreasonable interference, develop religious or belief-related identities, to bear witness to one’s beliefs by freely communicating with fellow believers or non-believers, to organise and enjoy community life based on common or shared beliefs, formal and informal education related to the transmission of one’s belief system to members of the community (particularly children) or others, and the management of institutions, such as charitable organisations, related to these beliefs”.

7. Limitations on the right to manifest religion or beliefs must be the exception, not the rule. The burden of justification for such restrictions falls on those who wish to impose them; they must be necessary and directly related to a legitimate aim; they must be prescribed by law, proportionate, and applied in a non-discriminatory manner. The right to freedom of religion or belief cannot be restricted on the grounds of national security.

8. The right to freedom of religion or belief “does not give the individual – as a right-holder – the power to marginalise, suppress or carry out violent acts against other individuals ... such as women or members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, under the guise of manifesting their religion, or as constituting the ‘moral high ground’.”

9. Granting official recognition for a particular religion or belief “should not result in the impairment of fundamental rights recognised under international law; nor should it result in any discrimination against persons who do not accept the official ideology or who oppose it”. (The rapporteur added that although state religions are permitted, they tend to have adverse and discriminatory effects on members of religious minorities.)

10. Some state parties to international human rights treaties have submitted general reservations that apparently justify certain restrictions of fundamental rights, based on religious principles. “All human rights are interdependent, interrelated and universal, and must be conceptualised in a holistic manner without perceiving of a hierarchy of rights,” the rapporteur said.

Relating this list to current practices in the Middle East, the enormous – and daunting – scale of the problem becomes apparent. The misperceptions and misconceptions that the UN rapporteur challenged are not simply “common”; they are deeply entrenched in society and its governments.

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