This interview first appeared in Just Security on 18 June 2020.
Ryan Goodman, Just Security‘s co-editor-in-chief, recently posed a series of questions to Ahmed Shaheed, U.N. Special Rapporteur on Freedom of Religion or Belief.
1. We often focus on governments as the key actors in both creating public health policy and promoting human rights, but you and others have mentioned the vital importance of working with faith leaders during this time. Could you elaborate on the role that faith leaders have in public health and the work that faith leaders and human rights advocates can accomplish in this space?
Religious actors have long played a vital role in providing social and humanitarian services, including in the provision of healthcare to all. The role of these actors becomes even more important in countries where governments do not or are not able to provide healthcare services extensively. So, there is a direct role that follows from this involvement in the humanitarian and social sectors. But the role of religious actors goes well beyond this in times of stress, anxiety and trauma, as many communities are experiencing at this time. The pastoral care needed by individuals who have lost or about to lose their loved ones has to be factored into the formulation of policies in response to the pandemic. But beyond this, I have been stressing the need for governments to work with religious and belief actors to increase community cohesion and resilience amidst rising religious hatred, as stressed in the Faith For Rights Initiative that brings together religion and belief-based actors to work together to advance human rights. Governments also need to work with religious actors in reaching out to religious communities in communicating public health messages and eliciting their collaboration for public health measures.
Human rights advocates also need to step up their efforts to ensure not just that the highest attainable standard of health is enjoyed by all but also that a human rights approach is taken by both public authorities and private actors. For example, Amnesty International and Human Rights Watch have issued guidance to states in regard to the principles that should underpin their responses to the pandemic. The UN High Commissioner for Human Rights has been very vocal on focusing the attention of all actors on immediate needs as well as the humanitarian challenges that lie ahead. The UN’s Office on Genocide Prevention and Responsibility to Protect has been very active in mobilizing faith-based actors and other humanitarian actors, as well as engaging with tech and social media companies on issues related to hate speech. The UN Special Procedures mandate holders on protecting human rights have issued numerous guidance notes, such as on the right to housing, on peaceful assembly and association, and the use of public emergency measures to uphold a human rights approach to the pandemic. During a crisis of this magnitude, offering guidance and mobilizing synergies across different actors, especially faith-based and other humanitarian and human rights actors, is crucial.
2. One of the most public emotional tolls of the pandemic has been restrictions on family members dealing with death and grief. Examples include restrictions on who can visit dying patients — whether family and friends or religious leaders— and what final rites are available. An extreme case was the forcible cremation of two Muslims in Sri Lanka, but restrictions on final rites can appear in forms as seemingly mundane as canceling or postponing funerals, or limiting attendance. How should governments balance the need to stop the spread of the virus with patients’ and loved ones’ right to free expression of religion?
As you rightly note, a painful aspect of the pandemic is related to the restrictions on visiting family members who could be dying in hospitals, care homes or otherwise away from each other, as well as performing their last rites, especially what they believe profoundly to be their sacred and cherished duty to their loved ones in their last moments or upon their passing. Freedom of religion or belief includes not just the right to believe or not believe but also the right to manifest one’s religion or belief in public or in private and alone or in community with others, in worship, observance, practice and teaching.
However, the manifestation of one’s religion or belief may be restricted under international human rights law to protect public safety, order, health or morals and the fundamental rights and freedoms of others, subject to meeting strict criteria. Any limitations must comply with one of those specified grounds, be clearly prescribed in law, be the least restrictive measure necessary to achieve the goal, and in no way vitiate the right itself or be discriminatory in intent or effect. The proportionality analysis this calls for requires a very diligent approach, both normatively and empirically, and must seek to protect all the rights concerned rather than trade one off against the other. In practice, this requires a case-by-case analysis that considers all relevant circumstances but is non-discriminatory in purpose or effect.
Some of the restrictions currently imposed on communal religious practice are not unprecedented and have been required in previous outbreaks of highly contagious infections, such as in the Ebola outbreak in West Africa and Zika in Latin America, but have not been implemented on such a global scale to date. Some restrictions limit or render impossible the manifestation of certain observances and practices fundamental to one’s religion or belief. Therefore, there is an obligation on the part of the State to ensure that any intervention by the State be the least restrictive measure that is available, and accommodate as far as possible the wishes of individuals to exercise their rights to communal religious expression. And this requires that the State not only take a diligent approach but also one that is sensitive to the religious or belief requirements of those involved.
In the specific case of Sri Lanka, I raised three issues with the government. First, while some restrictions on procedures related to burial may be necessary and justifiable for public health reasons, there were less restrictive measures than cremation that were available under the public health guidelines issued by the WHO in relation to the pandemic, and some of these measures could accommodate the relevant religious practices of communities. Second, the concerned communities were not consulted or engaged with in laying out restrictions. While consultation is not mandatory, engagement with the community could have contributed to exercising normative and empirical diligence necessary to ensure that all rights were respected to the maximum degree possible. That would also have been in accordance with the human rights principle of stakeholder participation and would also have been more effective from a public health perspective as well. And third, the impunity for scapegoating and stigmatization of Muslims in Sri Lanka that had led up to these measures created further concerns about the intent and effect of the restrictive measures taken.
3. Restrictions in the United States on churches in particular have generated controversy and lawsuits. State and local governments argue that these restrictions are necessary public health measures, but they have the effect of preventing at least some forms of religious expression. From an international human rights perspective, how can governments strike the right balance? Is the legal analysis different when a religious group contends that their particular faith places special emphasis on congregating or worshipping together in the same physical location?
As I explained above, when the exercise of various freedoms results in a clash of rights, every effort must be made to ensure that all rights are protected as human rights are indivisible, inter-related and interdependent, and without a hierarchy amongst human rights. Therefore one right should not be traded off against another, but balanced on a case-by-case basis grounded on a careful normative and factual analysis. A case-by-case analysis should not produce outcomes that are normatively inconsistent, which would amount to direct discrimination where similarly placed groups are treated differently, although the balance achieved in a specific case may vary depending on the facts of the particular situation. Non-discrimination, however, does not mean that all get the same treatment, as that could result in unfair outcomes to parties that may be differently positioned or burdened — in other words, the outcome of difference-blind treatment could be indirect discrimination. Thus, objective and reasonable criteria may be used to treat different individuals or groups differently to achieve fair outcomes for all, as in the case of affirmative action to achieve substantive equality.
Exemptions for particular religious groups from laws of general effect do exist and are recommended by international human rights standards to avoid indirect discrimination, as in the case of exemptions made for the slaughter of animals in compliance with religious requirements. However, exemptions from general laws are also subject to a proportionality analysis, and must be based on careful balancing of all relevant concerns. The argument that different religious communities are unevenly burdened should receive serious attention to avoid indirect discrimination, and, in theory, objective and reasonable criteria could be advanced to allow such religious communities to congregate. However, even if it may be hard to erect a barrier between the internal dimension of an individual’s belief, which enjoys absolute protection, and the outward manifestation of that belief, international human rights law does not guarantee absolute protection to the external dimension. Thus, calls for non-interference in the freedom of collective worship can be subjected to the twin test of not posing a harm to the rights of others, including those related to public health, and of not being discriminatory toward others in intent or effect.
At the end of the day, international human rights law does not protect religious rights per se, but provides a legal framework within which different individuals and groups of individuals can exercise their religious practices without infringing the rights of others. The role of the State is not to be a protector of religiously motivated practices as such, but to be an impartial guarantor of every individual’s fundamental rights. Moreover, States should not take an all-or-nothing approach, and must find ways to impose only those restrictions that are necessary to protect public health. As we have seen, this does not necessarily require a complete shutdown of collective worship, and where such a shutdown is not absolutely required on an evidence-based public health justification, the restriction would not be permissible under international law.
4. You have condemned cases of violence and discrimination since the start of the pandemic, including attacks on Muslims and a rise in global antisemitism. In particular, you have urged governments to combat disinformation by, “establish[ing] effective strategies and channels of communication to provide accurate and reliable information to the public.” Could you identify best practices by governments in establishing these strategies and channels to combat religious-based violence and discrimination? What should social media companies do?
The pandemic has been accompanied by a steep surge in “hate speech” and associated disinformation and misinformation that scapegoat and stigmatize ethnic and religious minorities. Peddling stereotypes and conspiracy theories to incite religious and racial hatred leading to violence and discrimination, both state and non-state actors have preyed upon people’s uncertainties, anxieties, fears and lack of information. The advocacy of hatred both online and offline has been widespread, by and large coalescing with pre-existing simmering hatred and xenophobia, resulting in attacks on places of worship and innocent people and calls for reprisals.
The pandemic has naturally caused widespread alarm and concern, and when governments do not communicate effectively and reject stereotypes and scapegoating, disinformation and bigotry can prey on people’s fears. Governments must enable the public to rely on accurate information that preempts false narratives and provide timely counter-narratives from public figures to reject hate speech. There are a number of good practice tools that offer guidance to states, and other actors such as the Rabat Plan of Action, which stresses the importance of robust anti-discrimination law and countering hate speech with positive messages. Other initiatives include the action plans associated with the Istanbul Process, and the UN’s Action Plan on Hate Speech. Amnesty International and Human Rights Watch have also issued guidance to states in regard to the principles that should underpin their responses to the pandemic.
Even before the pandemic there has been rising concern about the widespread use of social media platforms to disseminate hatred and, in some situations, to organize and incite mass violence. Certain social media companies have developed community standards and guidelines which seek to respond to the dissemination of hatred and are using a multitude of measures to tackle “hate speech.” These include a number of automated responses, often with a human in the loop for content moderation, user warnings, de-amplification, as well as non-automated responses, all of which seek to enforce the company’s published community standards. Increasingly, governments are imposing intermediary liability on social media and tech companies for user-generated content, which can generate other concerns, including restrictions on freedom of speech. Yet what is considered legitimate speech by one group might be considered inciteful by another, and user agreements are of limited help. Many perceive social media as playing an active role in censorship. The lack of an international legal definition of “hate speech,” the coded and contextual nature of “hate speech,” the sheer volume of user-generated content and the diversity of content in terms of form and language complicate the challenge of balancing the rights to free speech and to non-discrimination with the need to protect against incitement to violence.
I have stressed the vital importance of taking a multi-stakeholder approach that brings together social media and tech companies, governments and an inclusive civil society to take a human rights approach underpinned by the UN Guiding Principles on Business and Human Rights. As I stress in my report to the UN on combating antisemitism, there is a need for greater transparency on the part of social media and tech companies that will demonstrate how their community standards are being implemented, enable an assessment of the impact and effectiveness of existing policies and practices of these entities, and respond to this phenomenon in compliance with international human rights standards. A multi-stakeholder approach also means that there are roles for others. In the case of governments, they must ensure that root causes that underlie hate and its escalation into violence — such as offline discrimination against religious and ethnic minorities, women and LGBT+ persons — are addressed, while also investing more in fostering and protecting pluralism and empowering marginalized groups. Civil society can also play a role promoting diversity, solidarity and pluralism. Stakeholders can assist people through media training to help navigate falsehoods online, to facilitate their own effective counter-speech against hate speech, and to reach out to hate mongers to help them change their views.
5. You recently wrote a blog post with Professor Lorna McGregor on five urgent principles for leaving no one behind during the coronavirus pandemic, with a particular focus on technology. What connections do you see between the rights at the center of your mandate and the principles you articulate in that essay?
The freedom of thought, conscience and religion or belief is a very broad right and intersects with a range of fundamental freedoms such as expression, peaceful assembly and association (which can benefit from the right to privacy), as well as status-based rights including non-discrimination, equality before the law, minority rights and the protection against incitement to violence and discrimination. All these freedoms are universal and apply offline and online. Given that the internet now constitutes the premier global public forum and access is more urgent than ever, the five strategies identified in the blog include: guaranteeing internet access as a human right and public good; facilitating access to and affordability and use of connected digital devices; empowering people by addressing disinformation and hate speech without censorship, ensuring that enabling online access will not be a cause for more surveillance. These strategies are underpinned by the goal of advancing inclusivity, equality and non-discrimination, the right to privacy, and protection against the advocacy of discrimination and violence.
As already noted, during the COVID-19 pandemic there has been a sharp rise in hate speech directed at religious communities and the use of technology for public health monitoring carries the risk of violation of privacy rights associated with the enjoyment of religious freedom. Such surveillance increases exposure to persecution of religious minorities and dissenters by oppressive regimes. Various forms of inequality that exist offline, including gendered discrimination, are also evident online, as in the case of girls, women and gender-diverse persons. In addition, the exercise of religious freedom in a digital society also relies on emerging technologies, not just for community-building and outreach, but also for delivery of essential services such as pastoral care by chaplains or imams or rabbis or similar functionaries or for other spiritual needs.
Ahmed Shaheed is co-director of the HRBDT project.