NGO statement – International Society for Human Rights
Alfred de Zayas/ SEMINAR ON ARTICLES 19 AND 20 OF THE ICCPR
FREEDOM OF EXPRESSION AND PROHIBITION OF INCITEMENT TO RACIAL OR RELIGIOUS HATRED
I am UN representative of the International Society for Human Rights, retired UN staffer and former Secretary of the UN Human Rights Committee. I am also president of the Centre Suisse romand of PEN International, the foremost association of writers in the world – represented by 147 Centres. According to our 1921 Charter, we are committed to defend the exercise of freedom of expression as well as promote international understanding through literature. However, this afternoon I am not speaking on behalf of PEN, since I have not had my intervention cleared by headquarters in London.
I would like to address one issue : The obligations under articles 20 ICCPR and 4 ICERD to prohibit incitement to violence and to racial or religious hatred. We all agree that such legislation is necessary, especially because of its preventive component, but it is imperative that penal legislation be drafted narrowly and applied judiciously and not abused to silence dissent or to discourage free research.
Let us focus on one example – the 13 States that have enacted legislation criminalizing Holocaust denial. It is significant that recently, by judgment of 7 November 2007, the Constitutional Court of one of those States, Spain, decided that the Spanish legislation on Holocaust denial was unconstitutional. While affirming the constitutionality of penal sanctions against incitement, it rejected restrictions on freedom of research and freedom of expression, notably, it confirmed the right to have opinions different from those of consensus historians, to conduct research freely and to publish and disseminate research results. The judgment reads in part:
“Historical research is always…controversial and debatable, as it arises on the basis of statements and value judgments, the objective truth of which it is impossible to claim with absolute certainty…”
It stressed the importance of the freedom of research in a democratic society and the right to be wrong. Indeed, all scientific research is based on hypotheses, which may eventually prove erroneous. It is not the function of lawyers to legislate history.
I should further like to mention that PEN International has been seised of this issue of the tension between freedom of expression and permissible restrictions. The matter was discussed at the PEN meetings in Dakar in 2007, and at Glasgow and Bogota in 2008 The consensus is that, pursuant to PEN’s Charter, the right to freedom of expression is too precious to be subject to broad restrictions and that penal legislation in this respect must be narrow, targeting clear incitement and not the expression of opinions, however wrong they may be. Freedom of expression is the freedom of those with whom we disagree.
This, however, is different from allowing the dissemination of films or caricatures which are intended to offend or to ridicule a religion or a people. I thank you
Professor Alfred de Zayas, Geneva School of Diplomacy,