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The abhorrent crime committed against the editors of Charlie Hebdo has given rise to much discussion on freedom of expression. Very few of the commentaries seem to be aware of or give proper weight to the authoritative interpretation by the UN Human Rights Committee of Article 19 of the International Covenant on Civil and Political Rights concerning the rights of freedom of opinion and expression, and the necessity to exercise freedom of expression responsibly, avoiding incitement to discrimination, hatred or violence and striking a balance between the central role of freedom of expression in a democratic society and the need to prevent ethnic, religious or linguistic conflict. The bottom line of General Comment 34, issued on 21 July 2011 is that freedom of expression goes hand in hand with responsibility and is not a carte blanche to do or say anything one wants, especially not to use freedom of expression to undermine the Covenant or the respect due to others.
In December 2012 the Netherlands International Law Review published an article by myself and my then doctoral student and now freshly-baked doctor of international relations Aurea Roldan. Our article analysed the general comment of the Human Rights Committee and addressed troublesome issues concerning satires (see section 6.3 below), “blasphemy laws” and “memory laws”. http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=8777284&fileId=S0165070X12000289
Here an excerpt.
6.3 Satire and provocation: reasonable limits of the exercise of freedom of expression
Whereas freedom of opinion cannot be restricted, freedom of expression always carries special responsibilities with it, and is subject to reasonable restrictions under Article 19(3) of the International Covenant on Civil and Political Rights. If the Committee had adopted its General Comment in the fall of 2012 and not the summer of 2011, it would probably have devoted considerable space to the implications of the violence caused by the publication of cartoons and of an amateur video ridiculing Islam and its Prophet, which unleashed a wave of anti-Western rioting in many Muslim countries (74).
There is a debate going on in civil society as to the limits of satire when the consequences may be the death of many innocent persons. In such cases the question arises whether the exercise of freedom of expression can be given priority over social peace, and whether and what kind of restraint should be imposed. As in many other circumstances, there may be competing rights and colliding interests that must be taken into account and balanced out. Insistence on the exercise of any right, e.g., freedom of expression, notwithstanding the foreseeable consequences violates common sense and constitutes a dangerous form of impertinence.
Shakespeare deals with the ‘pound of flesh’ obsession in the Merchant of Venice, where the money-lender Shylock undoubtedly had a right to reimbursement of his loan, but not at any cost. If he demanded and obtained, as the contract stipulated, a pound of flesh from the body of the borrower, the Merchant Antonio, this would have entailed Antonio’s death and therefore constituted an attempt on the life of Antonio. In the play the competing rights were decided in favour of Antonio. Whereas in some Western media intransigence is justified and somehow ennobled by appealing to a ‘positive’ right to freedom of expression and the press, this flies in the face of the spirit of the law and human dignity. Moreover, one can cite other ‘positive’ obligations of states, such as the responsibility to prohibit incitement to racial or religious hatred,enshrined in Article 20 ICCPR, to ensure the ‘security of person’ pursuant to Article 9 ICCPR, and to respect freedom of religion and belief pursuant to Article 18 ICCPR. On the other hand, it must also be said that in the concrete case of violence following the publication of the anti-Muslim cartoons and videos, there was responsibility not only on the part of the individuals deliberately insulting and provoking, but also on the part of those persons who magnified and instrumentalized the provocations in order to cause greater havoc. (75)
- The airing in Youtube of an amateur film entitled ‘Innocence of Muslims’ was followed by an outburst of violence in the Muslim world, including the sacking of the US Consulate in Benghazi, Libya, on 11 September – along with the murder of US Ambassador Chris Stevens and three of his staff.
- On 14 September 2012 UN High Commissioner Navi Pillay said: ‘The film is malicious and deliberately provocative and portrays a disgracefully distorted image of Muslims. I fully understand why people wish to protest strongly against it, and it is their right to do so peacefully. However, I utterly condemn the killings in Benghazi, and other violent and destructive reactions to the film and urge religious and political leaders to make a major effort to restore calm’, <www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12522&LangID=E>.
If the Human Rights Committee had been confronted with the satirical articles of Charlie Hebdo in 2014, it would have reaffirmed the link between freedom of expression and responsibility not to incite to discrimination or violence. It would have sought to formulate a sensible compromise between freedom of expression and the responsibility to respect the honour and reputation of others.