PART FIVE: DISCRIMINATION AND EXPRESSION instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.1188 Indeed, central to the legitimacy of these distinctions for the purpose of human rights law is that the law is intended to protect persons and communities from harm, but it does not provide protection against ideas that may cause offence, and entities such as “the State”, “the flag”, “the Prophet” or Christianity, Islam, Judaism or any other religion per se are not protected entities for the purposes of human rights law. In practice, there is a troubling growth worldwide in the use of anti-blasphemy or anti-apostasy laws, in particular targeting religious or belief minorities. In some countries, the punishment for blasphemy or apostasy can be the death penalty. III. SANCTIONS FOR INCITEMENT AND OTHER FORMS OF HATE- OR BIAS-BASED EXPRESSION The Rabat Plan of Action provides that, in discharging their duty to prohibit hate speech, States should distinguish between (a) expression that constitutes a criminal offence; (b) expression that is not criminally punishable, but may justify a civil suit or administrative sanctions; and (c) expression that does not give rise to criminal, civil or administrative sanctions, but still raises concern in terms of tolerance, civility and respect for the rights of others.1189 PART FIVE The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has noted that hate speech should be addressed through a range of legal and policy measures, noting that the requirement to prohibit hate speech does not equate to an obligation to criminalize and that “only serious and extreme instances of incitement to hatred … should be criminalized”.1190 In cases not meeting this threshold, the Special Rapporteur recommends that States adopt civil laws “with the application of diverse remedies, including procedural remedies … and substantive remedies (for example, reparations that are adequate, prompt and proportionate to the gravity of the expression, which may include restoring reputation, preventing recurrence and providing financial compensation)”.1191 Criminal sanctions are the measures of last resort and should be applied only in strictly justifiable situations meeting high and robust thresholds, including the elements provided by the Rabat threshold test: context, speaker, intent, content, extent of the speech, and likelihood or probability of harm occurring.1192 States should consider civil or administrative sanctions,1193 which should be preferred over criminal sanction.1194 Indeed, the Rabat Plan of Action notes that: “States should adopt comprehensive anti-discrimination legislation that includes preventative and punitive action to effectively combat incitement to hatred.”1195 In practice, although discussion of responses to hate speech often circulates around questions of criminalization, many cases have involved other kinds of sanction or remedy such as being disciplined at or fired from work or disciplined at or expelled from school,1196 or recommendations to make changes to the names of public infrastructure.1197 1188 Human Rights Committee, general comment No. 34 (2011), para. 48. Similarly, “the Committee notes with concern that the archaic and discriminatory provisions of the Criminal Code which make blasphemy a misdemeanour are still in force on the Isle of Man, and recommends that these be repealed”. See CCPR/C/79/Add.119, para. 15. 1189 Rabat Plan of Action, para. 20. 1190 A/67/357, para. 47. The Ad Hoc Committee on the Elaboration of Complementary Standards is working on a protocol to the International Convention on the Elimination of All Forms of Racial Discrimination to secure criminalization of racist and xenophobic acts. See A/HRC/42/58. 1191 A/67/357, para. 48. 1192 OHCHR, “Threshold test on hate speech”, 2020. Available at www.ohchr.org/EN/NewsEvents/Pages/Hate-speech-threshold-test.aspx. 1193 Rabat Plan of Action, para. 34. 1194 E/CN.4/2000/63, para. 52; and A/HRC/4/27, paras. 44–57. 1195 Rabat Plan of Action, para. 26. 1196 Human Rights Committee, Ross v. Canada (CCPR/C/70/D/736/1997). 1197 Committee on the Elimination of Racial Discrimination, Hagan v. Australia (CERD/C/62/D/26/2002), para. 7.3. 185