The murderous January attack on Charlie-Hebdo staff has revived an old question: what limits should be put on freedom of expression? How far can words that are blasphemous or deny genocide be tolerated? This already thorny issue has been further complicated by the rise of extremist Jihadism. And the European Court of Human Rights keeps altering tack.
Some 25 years before the attack on Charlie-Hebdo, the Western world was deeply shocked in 1989 when Ayatollah Khomeini pronounced a fatwa against British writer Salman Rushdie after he published The Satanic Verses, considered blasphemous. This shocking order to kill a novelist who was himself of Muslem origin sowed the seeds for a conflict of values that Europe faces more than ever today.
Where should we set the limits on freedom of expression? Independently of the caricatures of Mohammed, the question divides both Western and Muslim countries on a cultural level. Muslim countries are confronted both with Islamic radicalism and the aspirations for freedom that once led to the ephemeral Arab Spring. Last May, a Saudi blogger, Raif Badawi, was sentenced to 10 years in jail and 1,000 lashes for “insulting Islam”, a punishment that caused a global outcry. For years, the Shiite powers in Iran and Wahhabis in Saudi Arabia have been trying to get the better of each other to claim leadership of the Muslim world. Meanwhile in Tunisia there is a real debate on social values, which includes the different strains of both Islamist and secular tendencies.
At government level, the dynamic has been quite different since the early 1990s. Even though Iran and Saudi Arabia are indirectly fighting each other in the wars of Syria and Yemen, they come together with all the 57 members of the Organisation of Islamic Cooperation (OIC) to demand a ban on “defaming religions”, in other words, a global ban on blasphemy.
Western countries firmly oppose this in the name of “defending freedom of expression”. But behind this rallying call, they are also divided. The United States with its First Amendment consistently refuses to put limits on freedom of expression, except for hate speech that leads to violence. This explains why most of the genocide denial sites are hosted on US territory. The European stance, on the other hand, is more ambiguous, because laws forged on remembrance do set limits on freedom of expression. Hence the many provocations by the Iranian regime, including a Holocaust cartoon competition organized by the pro-government newspaper to denounce “Western hypocrisy” in punishing Holocaust denial but allowing blasphemy.
The European Court of Human Rights (ECHR) seems to be chopping and changing on the limits that should be put on freedom of expression and even genocide denial. Whereas a clear position – whatever it is -- is needed to clear territory fraught with powerful symbolic and political landmines, the Court is wavering in its judgments between its desire to protect freedom of expression and its desire to repress genocide denial, at the cost of contrasting judgments that stoke competition on who is the greater victim.
For example, in an October 15 judgment on a case involving Switzerland and Turkish genocide denier Dogu Perinçek, the Court acquitted Perinçek, who had nevertheless described the Armenian genocide as an “international lie”, the Court stating that Perinçek didn't incite to hatred. But the same Court has always condemned those who deny the Nazi genocide of the Jews, including recently comedian and political activist Dieudonné M’Bala M’Bala, on grounds that “Holocaust denial, even when disguised as impartial historical research, invariably translates to an anti-democratic and anti-Semitic ideology”.
The Perinçek judgment is even more problematic given that the majority of ECHR judges based their decision on history and geography. They said that Perinçek had caused no damage to Switzerland because there is “no direct link between Switzerland and the events of 1915 and the following years in the Ottoman Empire”. These judges are clearly not “digital natives” and do not use Facebook and Twitter much.
But the European Court should know that after the Mohammed cartoons that appeared in an unknown Danish newspaper and caused violent protests far away from peaceful Scandinavia, basing judgments on geographic and historic proximity is not only inappropriate, it is also dangerous.