Thursday, 29 March 2012

Great article here from the Commentator. It's sad to see so many Counterjihadists still ludicrously proclaiming themselves to be human rights activists when, if they had analysed the situation properly, they would realise that the human rights framework and mentality is the very thing that allows the Muslims to continue making their advances.
After student Liam Stacey is jailed for 56 days for a racist tweet about Fabrice Muamba, we need to re-think our approach to free speech, and learn a bit of history

In 1742, David Hume could write, “Nothing is more apt to surprise a foreigner, than the extreme liberty, which we enjoy in this country, of communicating whatever we please to the public, and of openly censuring every measure, entered into by the king or his ministers.”

Hume may have overstated his case somewhat, as prosecutions for blasphemous libel did take place at the time. But compared to just about anywhere else in Europe, Britons enjoyed unprecedented freedom of speech in the 18th century.

To a foreigner fond of British culture, not least its tradition of liberty, Hume’s words now evoke a mixture of sadness and bewilderment. How did a nation that once had the freest press in the world evolve into a society where (however offensive or morally objectionable) the distribution of religious caricatures, the comparison of Islam with terrorism, expressing religiously based objections to homosexuality and using racially “abusive” or “insulting” language on social media result in criminal conviction?

Authors such as Nick Cohen, Douglas Murray and Keenan Malik have done much to clarify how ideological multiculturalism has been the principle force leading to undermining freedom of expression in the UK, through the promulgation of so-called hate-speech laws (misleadingly labeled public order laws).

But the nefarious effects of multiculturalism might not have moved from the imposition of political correctness and self-censorship (which is serious enough) to the realm of criminal law without a supportive legal matrix.

That matrix was provided by international human rights conventions adopted at the UN during the Cold War era. The International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Racial Discrimination (ICERD) made it an obligation to prohibit certain forms of hate speech under international human rights law.

A striking feature of the negotiations of these conventions was the British government’s principled yet ultimately unsuccessful battle against a bloc of states, led by the Soviet Union and its allies, which were those introducing and insisting on hate speech laws in international human rights conventions.

The battle over whether human rights should simply oblige governments to respect freedom of expression or also include an obligation to prohibit certain forms of controversial speech began during the drafting of the Universal Declaration of Human Rights (UDHR) after the end of WWII.

The Soviet Union was adamant that states should be obliged to restrict “fascist” expressions and political parties. Of course, the Soviet definition of fascism could very easily include parliamentary democracy.

The UK was not against allowing certain restrictions on freedom of expression per se. But the British position was that restrictions should primarily be limited to the incitement to violence and should not be an obligation imposed on governments.

Human rights should protect individuals from totalitarian measures, not provide pretexts for prohibiting dissent. Through the hard work of the UK and the US, the Soviet proposals to include a hate speech provision in the UDHR was avoided.

Yet the issue resurfaced when the member states of the UN were to adopt the legally binding ICCPR and the ICERD. ICCPR Article 20 (2) states that, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.

The original American proposal had been limited to the prohibition of incitement to violence, a position supported by the UK. However, once again the Soviet Union and allies proposed sweeping prohibitions on free speech.

During the debates, the UK representative argued eloquently for the importance of freedom of expression even in controversial matters. The UK warned against political misuse of the proposal: “Unscrupulous governments like nothing better than moral justification for their actions.” Extremism should not be fought by criminal law but through open debate, since “the power of democracy to combat propaganda lay . . . in the ability of its citizens to arrive at reasoned decisions in the face of conflicting appeals.”

When challenged by the Soviet Union, the UK representative pointed out that during World War II, Hitler’s Mein Kampf had not been banned in the UK, and that its government “would maintain and fight for its conception of liberty as resolutely as it had fought against Hitler.”

But ultimately, the efforts of the UK were in vain, and in 1961 Article 20 was adopted by a large majority. Not a single Western democracy voted in favor of this provision, and almost all voted against. Upon ratification, the UK “reserve[d] the right not to introduce any further legislation” citing its concern for freedom of expression, association and assembly.

During the negotiations about the ICERD in the early sixties, the Communist states were once again able to dominate the outcome, aided by former colonies whose representatives saw hate speech provisions as a way to fight apartheid and colonial-era era racism.

Accordingly, article 4(a) states that “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination […]” shall be criminalized. ICERD also obliges states parties to “declare illegal and prohibit” racist organizations.

Once again the UK and the US, along with the Nordic countries, sought to counter such limitations on freedom of expression and association. In the words of the UK representative, Lady Gaitskell, “Speech should be free, but incitement to violence should be repressed.”

Lady Gaitskell was even more to the point when rejectingICERD’s restrictions on freedom of association, insisting that the UK “defended the right of all organizations, even Nazi and communist ones, to make their views known even though those organizations held views, which the majority of the people utterly repudiated”.

In the event, the ICERD was adopted unanimously, but along with a number of other states the UK entered a reservation aimed at safeguarding freedom of expression and association. But the principle battle had been lost as totalitarian and authoritarian states were allowed to turn the concept of human rights into a form of“newspeak” legitimizing the very repression that human rights were supposed to protect against.

In the era of identity politics and multiculturalism that followed, it would lead to the current state of affairs where mainstream politicians and human rights activists all agree on the need for criminalizing speech. It is nothing short of astonishing that some 50 years ago the UK was leading the fight against the very illiberal laws that it is now enforcing rigorously.

While contemporary proponents of hate-speech laws seldom share the same ideals as the Communist states that championed these laws, they rarely reflect that such laws are a legacy of totalitarian states in which freedom of expression was systematically violated.

Nor do they mention that these states had a clear interest in legitimizing and justifying their repression with the use of human rights language.

Today the international human rights agenda is thoroughly conflated not only with socio-political biases, but also with campaigns for tolerance and against racisms that, while generally laudable, often conflict with the high human rights ideal of protecting one’s enemy’s freedom of speech.

Surely the totalitarian origins of hate speech laws should prompt Britons, and indeed all lovers of freedom, to reject hate-speech laws as incompatible with human rights.

Not only do such laws violate freedom of conscience and expression and corrupt the public discourse, but there is no evidence that they work as the ultimately futile prosecution of leading Nazis during Weimar Germany and the existence of hate speech laws in the Former Yugoslavia testify.

The UK has entered reservations to the ICCPR and ICERD, and EU laws on hate speech include a loophole. Nothing prevents Britain from drastically overhauling its hate speech laws so that once again “extreme liberty” becomes the norm in the realm of free speech—nothing, that is, other than the force of prevailing intellectual fashion and moral lassitude.

Jacob Mchangama is director of legal affairs in the independent think tank Center for Political Studies (CEPOS) based in Copenhagen. He is also an external lecturer in international human rights law at the University of Copenhagen
Source: The Commentator


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