A/HRC/31/18
attacks, the experience of practical sympathy can help restore trust in society among
members of the targeted minority after violence has been perpetrated. Acts of solidarity
should include participation in funerals and visits to bereaved families. Again, government
representatives have a particular responsibility to be visibly and credibly present in such
critical situations.
4.
Restrictive measures connected to high thresholds
54.
As previously stated, the rights to freedom of religion or belief and to freedom of
expression are not beyond limitations in the forum externum. However, bearing in mind the
special rank of these “inalienable” rights as well as their practical significance for creating a
culture of trustful communication and public discourse, limitations should always be drawn
with caution and must be fully in line with international human rights standards. Among the
criteria required for restrictions to be justifiable, these measures must actually prove
“necessary” for achieving one of the enumerated legitimate aims. The principle of necessity
implies that certain restrictive measures cannot be legitimate if less far-reaching
interventions could accomplish the same results.
55.
Unfortunately, realities in many countries differ from those standards. The Special
Rapporteur was repeatedly surprised that some Governments all too quickly resort to
restrictive measures in their fight against religious intolerance, often without even trying to
explore the potential of communicative counter-strategies. Rather than using
communicative counter-strategies and forming broad alliances with different societal
stakeholders in creating a culture of open-mindedness against religious intolerance, some
Governments seem to see their leadership role chiefly as passing and enforcing criminal
legislation. However, this means turning the sequence of measures upside down. From the
perspective of freedom of religion or belief, seen in conjunction with freedom of
expression, the primacy of non-restrictive policies should always be upheld. Moreover,
restrictive measures if deemed necessary must meet all the criteria laid down in
articles 18 (3) and 19 (3) of the Covenant, as developed above.
56.
Another important norm, which has recently attracted more attention, is
article 20 (2) of the Covenant, which states that “any advocacy of national, racial or
religious hatred that constitutes incitement to discrimination, hostility or violence shall be
prohibited by law”. The title and the text of Council resolution 16/18 reflect the renewed
awareness of this norm. In its general comment No. 34, the Human Rights Committee
emphasizes that prohibitions enacted in the name of article 20 (2) must comply “with the
strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26”
(para. 48). This means that, besides preserving all the guarantees enshrined in article 19 (3)
of the Covenant, which can never be circumvented by invoking article 20 (2), prohibitions
must be precisely defined and must be enacted without any discriminatory intention or
effect.
57.
Article 20 (2) of the Covenant is also reflected in the title of the Rabat Plan of
Action on the prohibition of advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence. In appreciation of the special rank of the
right to freedom of expression, the Rabat Plan of Action clarifies that “article 20 of the
Covenant requires a high threshold because, as a matter of fundamental principle, limitation
of speech must remain an exception”.17 In order to further spell out the required threshold,
the Rabat Plan of Action proposes a six-element test which should support the judiciary in
assessing whether concrete acts of hate speech actually amount to “incitement to
discrimination, hostility or violence” and are serious enough to be considered as criminal
17
See A/HRC/22/17/Add.4, appendix, para. 18.
15