Human rights organizations including Amnesty International, Freedom House and Human Rights Watch, have also noted that blasphemy laws are being abused to target religious minorities, dissenters, and to legitimize vigilant mob violence. Human rights discourse should play no part in providing legitimacy — however indirectly — to such practices.
The critical comments about the Prophet of Islam were based on accounts of the life of Muhammad in the Hadiths which next to the Qur’an are the most important foundational texts of Islam. According to some hadiths, the 53‐year old Muhammad married a girl named Aisha at the age of six and consummated the marriage when she was nine.
A millennium before the Rights Revolutions that brought basic rights to (some) women and girls, child marriages were common in many parts of the world. So judging a 7th‐century figure by the standards of the 21st century looks like bad history lacking proper context. But since Muslims claim Muhammad is the seal of Prophets, whose life is an example to follow even today, debating the merits and moral nature of his acts and sayings remains deeply relevant. Especially since modern secular states like Denmark, Norway and Sweden have debated allowing child marriages of asylum seekers out of “respect” for traditional culture.
Accordingly, the Court’s insistence that verbal attacks on religious doctrines and figures should have a certain “factual basis” creates an impediment to rigorous and passionate debate of religion. Much contained in texts considered sacred by their followers will be rejected as falsehoods by those of other faiths or non‐believers. Moreover, to the non‐believer, the Quran — like the Bible — includes many contradictions and even fervent believers passionately disagree about the correct interpretation. Hence, the numerous different sects each insisting that their interpretation of scripture is The Truth. When it comes to the life of Muhammad, historian Tom Holland has made the important point that almost no textual record appears until almost 200 years after Muhammad’s death.
Accordingly, no reliable standard of “factual basis” can or should be required for any opinion on religion or religious figures, however offensive to those who hold such doctrines or persons to be sacred. In the words of Jonathan Rauch, “A society which has accepted skeptical principles will accept that sincere criticism is always legitimate. In other words, if any belief may be wrong, then no one can legitimately claim to have ended any discussion — ever. In other words: No one gets the final say.”
It is this principle of “liberal science,” which the Court’s reasoning rejects by accepting only a benign interpretation of the life of Muhammad as The Truth. While the bloody and repressive aspect of religious intolerance has mostly been abandoned in democratic Europe, religious doctrine still trumps the conscience of the individual in many parts of the world. Blasphemy and apostasy is punishable by death in 13 Muslim majority countries. In Russia, artists, bloggers and YouTubers have been prosecuted for mocking religion under that country’s nebulous law against offending religious feelings. As the Court’s ruling stands, it might well have accepted the conviction of the Moscow Sakharov’s Museum’s curator and director for organizing an exhibition titled Religion, Be Careful!
The Court’s ruling does not mean that European countries are obliged to adopt blasphemy or religious insult laws. But it does suggest that if the editors of Danish newspaper Jyllands‐Posten and French magazine Charlie Hebdo had been convicted for publishing mocking cartoons of Muhammed, they would not have been protected by free speech. And the decision will almost certainly embolden authoritarian governments in the Muslim world and elsewhere to renew efforts to erect a global blasphemy ban. From 1999 until 2010, Muslim states in the Organization of Islamic Countries (OIC) supported by Russia and others attempted to include a ban against “defamation of religion” in international human rights law. Only a sustained effort led by democratic states, international organizations and activists defeated the effort. Since then the UN’s Human Rights Committee has clarified that “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible” with the International Covenant on Civil and Political Rights.
Even the very organization to which the Court belongs has distanced itself from blasphemy laws. In April 2017, Council of Europe Secretary General Thorbjørn Jagtland emphasized that “blasphemy should not be deemed a criminal offense as the freedom of conscience forms part of freedom of expression.”
Moreover, in the past ten years a number of European countries including Denmark, Norway, the Netherlands, the UK, Malta, and most recently, Ireland, have abolished blasphemy bans, leaving only a handful blemishes on the map of democratic Europe. The Court’s decision therefore constitutes a clear and present danger to the emerging consensus that blasphemy laws are incompatible with international human rights law.
The Court’s decision will also blunt criticism of existing blasphemy bans in countries where they’re used to marginalize minorities and punish dissent. Why should Pakistan, Russia and Saudi Arabia feel any pressure to abolish their blasphemy bans when the top human rights court in democratic Europe has blessed the idea that religion can be protected from offense without violating free speech?