UN Launches the Rabat Plan of Action

On 21 February  2013, the UN Office of the High Commissioner for Human Rights (OHCHR) launched the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. The Rabat Plan aims to provide guidance on how to balance between Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which provides for freedom of expression, and Article 20, which prohibits incitement of discrimination, hostility or violence.

Balancing Freedom of Expression and the Prohibition on Incitement of Violence

ICCPR Article 19 provides that “[e]veryone shall have the right to freedom of expression,” but this right is not unlimited.  Paragraph 3 of Article 19 states that this freedom  “may … be subject to certain restrictions, but these shall only be such as are provided by law and are necessary … [f]or respect of the rights or reputations of others; [or] … [f]or the protection of national security or of public order (ordre public), or of public health or morals.” In addition, ICCPR Article 20 provides that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

However, while Article 19 specifically acknowledges that the freedom of expression can be curtailed, determining what limitations are actually necessary to protect national security or public order – and what constitutes a threat to public order – is no easy task. Likewise, the extent of Article 20’s limitations depends on how broadly one defines its terms, particularly “incitement.” Therefore, although Article 19 expressly allows for limitations on freedom of expression and Article 20 requires that certain incendiary speech be made illegal, determining exactly where a government should draw the line between Article 19 protections and Article 20 prohibitions is open to a potentially wide degree of legal interpretation.

The Rabat Plan of Action

The Rabat Plan of Action grew as an outcome document from four regional expert workshops hosted by the UN OHCHR in Austria, Kenya, Thailand, and Chile during 2011. At each forum, the experts discussed “what constitutes ‘incitement’ to discrimination, hostility or violence based on national, racial or religious grounds as described in international human rights law” and how best to strike a balance between Article 19 and Article 20. Subsequently in October 2012, the OHCHR convened a final meeting in Rabat, Morocco to articulate a plan of action for reconciling these often polarizing principles. Participants at the Rabat forum included moderators from each of the four regional workshops, as well as UN experts on the issues of freedom of expression and the elimination of discrimination.

The Rabat Plan of Action emphasizes the interdependence of human rights and the critical role human rights play in “creating an environment in which a constructive discussion about religious matters could be held.” It also notes that open discussions are “the soundest way to probe whether religious interpretations adhere to, or rather distort, the original values that undermine religious belief.” The Rabat Plan then provides recommendations for States in terms of legislation, jurisprudence, and policy to achieve this desired space for free and open discussions that promote inclusion and respect diversity.

In terms of legislation, the Rabat Plan encourages States to define incitement to discrimination narrowly, noting that “[t]he broader the definition of incitement to hatred is in domestic legislation, the more it opens the door for arbitrary application of these laws.” Restrictions on freedom of expression should therefore past the three part test of legality, proportionality and necessity, “i.e. such restrictions must be provided by law, be narrowly defined to serve a legitimate interest, and be necessary in a democratic society to protect that interest.”

For the development of jurisprudence, the Rabat Plan offers six factors for national courts to consider when assessing whether a specific instance of speech ought to be prohibited or punished as incitement. These factors are the context, speaker, intent, content or form, extent of the speech, and likelihood – including imminence – of inciting hatred. When punishment for illegal incitement are necessary, the Rabat Plan advises it should only be in the form of civil or administrative sanctions – as opposed to criminal sanctions – whenever possible.

With respect to government policies, the Rabat Plan notes that States must act broadly to ensure “intercultural dialogue” in a variety of forums and promote pluralism, so that minorities and indigenous peoples have the opportunities to make meaningful contributions to national discussions, as well as a means to combat intolerance and discrimination with society. The Rabat Plan recommends that States promote public education on human rights and sensitize law enforcement and security forces “regarding questions concerning the prohibition of incitement to hatred.”  The Rabat Plan also outlines several recommendations to the UN and other stakeholders, including civil society organizations, to “create and support mechanisms and dialogues to foster intercultural and inter-religious understanding and learning.”

What’s Next?

The OHCHR launch ceremony for the Rabat Plan calls for “the attention of all stakeholders in order to assist them in the implementation of international obligations.” The UN is expected to articulate next steps for supporting States to implement the Rabat Plan’s recommendation, and in the mean time, civil society organizations can draw on the Rabat Plan’s conclusions and recommendations when calling on their governments to take concrete actions on both combat intolerance and promote plurality within the obligations of ICCPR Articles 19 and 20.