The Folly of Appeasement 
The EU leads liberal democracies' surrender on free speech.

By JACOB MCHANGAMA 
October 3, 2012
The Wall Street Journal
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The fallout from the crude amateur film Innocence of Muslims has been a blessing in disguise for the 56-member Organization of Islamic Cooperation (OIC). 
For years the OIC has sought to adopt a legally binding prohibition against defamation of religions at the United Nations, an effort transparently aimed at criminalizing any criticism of Islam. Through an American-led compromise, the reference to defamation of religion was dropped last year in a nebulous Human Rights Council resolution on combating intolerance and negative stereotyping. The decision was hailed as a victory for free speech.
But the OIC has not given up its efforts to silence criticism of Islam. The group has merely changed tactics, focusing instead on dramatically expanding the U.N. ban against advocating religious hatred. 
The legal basis here is the U.N.'s International Covenant on Civil and Political Rights (ICCPR), which prohibits any advocacy of . . . religious hatred that constitutes incitement to discrimination [or] hostility. Several Western states also bar such incitement. The OIC's attempt to broaden existing hate-speech laws is therefore difficult to resist on principle for those liberal democracies, which have bought into the idea that tolerance can be fostered through limiting free speech.
This agenda was vividly on display in a statement by the foreign ministers of the OIC at the U.N. General Assembly last week. The statement, in response to the Innocence of Muslims film and cartoons depicting Muhammad published by a French magazine, refers to the U.S.-brokered Human Rights Council resolution. It then urges U.N. member states, in line with their obligations under international human rights law, to take all appropriate measures including necessary legislation against these acts that lead to incitement to hatred, discrimination and violence against persons based on their religion.
Astonishingly, the European Union's high representative for foreign affairs, Catherine Ashton, has also issued a joint statement with the secretaries general of the OIC and the Arab League that condemn[s] any advocacy of religious hatred that constitutes incitement to hostility and violence. While fully recognizing freedom of expression, we believe in the importance of respecting all prophets.
The statement will be understood by many as EU approval of the OIC position that disrespecting any prophet is tantamount to advocacy of religious hatred and should be prohibited by states that have ratified the ICCPR. If such a broad understanding of religious hate speech becomes the norm in the EU, the repercussions for free speech could be dramatic. 
Europe is already moving in this direction. In 2008, the EU adopted a framework decision obliging all member states to criminalize hate speech, including incitement to hatred against religious groups. Several European states, including the U.K. and Denmark, have already prosecuted and sometimes convicted their citizens for expressions deemed insulting to Muslims and Christians.
The Treaty of the EU states that the union is built on the principles of liberty . . . and respect for human rights. But Europe has abdicated moral leadership in siding with the OIC, whose Cairo Declaration on Human Rights in Islam contains the caveat that all the rights and freedoms stipulated in this Declaration are subject to the Islamic Shariah. It is difficult to envisage what common ground the EU shares with, say, Iran, where clerics are imprisoned for declaring Islam compatible with secularism. Or with Egypt, where bloggers are imprisoned for defending the rights of religious minorities. Or with Saudi Arabia, where tweets questioning the wisdom of Muhammad result in indefinite imprisonment and the risk of capital punishment.
The fecklessness of the EU marks a striking contrast to the position of liberal democracies in a similar debate that took place at the U.N. during the Cold War. Then, it was the Soviet Union and its allies who demanded the introduction of hate speech provisions in international human-rights law. At the time, not a single member of the Council of Europe voted in favor of prohibiting hate speech under the ICCPR. During a debate, the representatives of the U.K. pointed out that during World War II, Adolf Hitler's Mein Kampf had not been banned, and said that Britain would maintain and fight for its conception of liberty as resolutely as it had fought against Hitler.
Despite their principled stand, the liberal democracies ultimately lost the fight and have since implemented some of the restrictions on speech they once opposed. If leaders of liberal democracies now don't even want to put up a fight, what are the odds that they will win the battle this time? Before giving in entirely, as Ms. Ashton appears to have done, they might first consider the cost of defeat. 
Mr. Mchangama is managing director of the Freedom Rights Project, director of legal affairs at the Danish think tank CEPOS and external lecturer in international human-rights law at the University of Copenhagen.