In search of sanity
argues that the controversy over Danish cartoons depicting the prophet can only be settled in the courts
There is little need to elaborate on the causes and repercussions of the current controversy between the Muslim world and the EU over the cartoons that appeared in a Danish newspaper. Suffice to say both sides are entrenched in their positions. The government of Denmark, as well as the cartoonists and the newspaper, still refuse to apologise, arguing that there is nothing to apologise for. While they have expressed regret for the unintentional offence the cartoons caused Muslims they remain adamant that the cartoonists, and the newspaper, were simply exercising freedom of expression, a right that is fundamental to the building of democracy and that must be defended against any "Islamist repression". On this Europeans are united. Freedom of expression has become a clarion call for the defence of a set of principles and a way of life that are coming under "Islamist attack". Meanwhile, the Muslim people and some Muslim governments have escalated their campaign of condemnation and continue to insist upon an apology. Between the two sides, there are various forms of contacts aimed at securing an appropriately worded apology or at capping the tensions. Above all, the Danish ambassador in Riyadh has been working with the Organisation of Islamic Conference (OIC) to quell the controversy and halt the drain on the Danish economy. He regards this effort as consistent with Denmark's fixed position on freedom of opinion, a position with which he hopes the Islamic world will sympathise.
The question of freedom of opinion is not as clear cut as many in the West would have it. Those whose knee-jerk reaction was to rush to defend the Danish newspaper appear to have forgotten that the concept of freedom of expression evolved over time and in response to various controversies over its positive and negative impact on society. The issues associated with freedom of expression today are of an entirely different order to those that prompted the famous dissenting opinion of US Supreme Court Chief Justice Holmes in the case of Abrams versus the US in 1919. Simultaneously, the extremity of the reaction to the cartoons and the Western position are also a cause of concern. It is clear that some Muslim agencies, including some governments, are exploiting Muslim sensitivities and complexes to inflame the passions of the people and drive them to irrational acts of violence which serve neither the cause of Islam nor the values preached by the prophet. In short, both sides are behaving recklessly.
There is no such thing as unlimited freedom of expression. Every legal system in the world has felt the need to impose certain restrictions on this freedom for various reasons. In Rwanda, the High Court has prevented the media from propagating the kind of hatred that incited Hutus into acts of genocide against Tutsis. Many European countries criminalise Holocaust denial. Recently, in Austria, and in spite of a later retraction of what he once said, British historian David Irving was sentenced to three years in prison on this charge.
The European Court of Human Rights has stated that "freedom of expression is one of the mainstays of a democratic society," and the European Convention on Human Rights, which is applied in Denmark, enshrines this opinion. Article 10 states: "This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." No line is drawn between inoffensive and offensive ideas and information.
Still, the right is not absolute. The second paragraph of the same article states that the exercise of this freedom may be subject to certain restrictions, "as are prescribed by law and are necessary in a democratic society." It goes on to list the areas of concern that might necessitate such restrictions, and one of these is the need to protect the reputation or rights of others. The provision obviously makes it possible for governments to criminalise libel and slander, but it also makes it possible for them to criminalise hate rhetoric.
In fact Denmark has legislation that is intended to do precisely this. Article 266 (b) of the Criminal Codes allows for the penalising of any person "who publicly, or with the intention of wider dissemination, makes a statement or imparts other information by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin, religion or sexual orientation". Moreover, in a case before the Heming district court, the court defined "wider dissemination" as including electronic messaging to more than 47 persons, and accordingly found a member of the Danish People's Party guilty of disseminating false and insulting information about Muslims. Danish courts have also ruled that Article 266 (b) applies not only to verbal or written utterances but also to visual images, symbolic acts, such as the burning of crosses, and all other forms of communication that could fall under the category of hate rhetoric. In addition Denmark is party to the International Convention on the Elimination and Prevention of All Forms of Racial Discrimination and, accordingly, has pledged itself to the immediate pursuit of all appropriate means and policies to end racial discrimination and improve inter-racial and inter-ethnic understanding. Under this convention Denmark has additional grounds for taking action against hate crimes which are inherently conducive to the spread of discrimination.
If it can be determined that in disseminating the cartoons the editor of the Danish newspaper acted with the intent to offend Muslims and incite hatred against them, he will be in violation of Article 266 (b). However, in September 2005, Denmark's public prosecutor rejected an appeal by Muslim clergymen in Denmark to prosecute the editor under this provision of the Criminal Code. It was a very shortsighted political decision. Surely Danish officials must be aware that their country has become a flashpoint for xenophobic hatred and violence directed against Muslim immigrants. Surely they do not want their newspapers to fan the flames and generate a situation for Muslims similar to that which awaited the Tutsis in Rwanda.
It seems impossible to interpret the Danish judicial officials' rejection of the suit filed by Muslim clergymen as anything but an act of prejudice. If so, should not the government of Denmark be held accountable before the international community? Should not charges be brought against Denmark before the European Court of Human Rights for violating the provisions of the European Convention on Human Rights, or before the International Court of Justice for violating the provisions of the International Convention on the Elimination of All Forms of Discrimination?
It goes without saying that such options should be explored. However, we are still left with a very explosive political situation. The Danish refusal to offer an apology is a political decision that betrays a contemptuous attitude towards Muslims, and this attitude has been reinforced by the EU's position. As the Islamic world considers its course of action, should it not take into account the precarious position of the Muslim minority in Europe? One also cannot help but to wonder how the dialogue between Islam and the West will fare in this climate. Obviously, the Islamic world has to reconsider its options in this regard and to rally the necessary resources to ensure that the dialogue is one between equals and sought by both sides. Otherwise it is no longer dialogue but a caving in to the West's conditions.
There is a final point to be made with regard to the political clash between the Islamic world and the West over the cartoons. If the outcry from the Muslim world subsides the West will persist in its rigid stand vis-à-vis freedom of expression, opening the prospect of a new and even more explosive round of confrontation as forces in the West make even freer game of Islamic sanctities and Islamist groups take advantage of the opening given to them by what they will construe as the weakness of Muslim governments. On the other hand, if Denmark apologises the Islamic world will take this as a victory and Europe will view Muslim jubilation as a defeat for freedom of expression at the hands of proscriptive Muslim public opinion. Is there a safe way out of this conundrum? I believe there is. It is for leaders from both sides to reach an agreement that would open the avenues to judicial arbitration in Denmark and in Europe's other courts.
* The writer is former assistant to the Egyptian foreign minister.