The Rabat Plan of Action on ‘the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to hostility, discrimination or violence’, developed by international experts with the support of the UN Office of the High Commissioner on Human Rights (OHCHR), provides practical legal and policy guidance to States on implementing Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), which requires States to prohibit certain severe forms of ‘hate speech’.

Since it was adopted in 2012, it has been expressly referred to in the more recent iterations of Human Rights Council Resolution 16/18, and endorsed by numerous Special Procedures of the Human Rights Council, including the Special Rapporteur on Freedom of Religion or Belief. The Rabat Plan of Action has normative and practical significance. It addresses misunderstandings of Article 20(2) of the ICCPR by setting out clear guidance on the exceptional circumstances in which the most severe forms of ‘hate speech’ should be limited. It also sets out positive policy measures to address the root causes of discrimination, and the various stakeholders that must be engaged in order to counter ‘hate speech.’

The Rabat Plan of Action’s emphasis on supporting open and robust debate, including by elevating the voices of minority and marginalised groups targeted by hate, makes it an important complement to Council Resolution 16/18. It gives much more granular detail on how stakeholders can ensure these measures comply with international human rights law, in particular guarantees stipulated in the ICCPR for the right to freedom of opinion and expression, the right to freedom of religion or belief, and the right to equality in the enjoyment of human rights and equal protection of the law (Articles 19, 18, and 2(1) and 26 of the ICCPR).

The obligation to prohibit ‘incitement’

The Rabat Plan of Action unpacks the Article 20(2) ICCPR obligation on States to prohibit ‘any advocacy of national, racial or religious hatred that constitutes incitement to hostility, discrimination or violence.’ This corresponds to the more specific commitment within Resolution 16/18 for States to ‘criminalise incitement to imminent violence based on religion or belief’ (paragraph 5f).

While recognising the serious harms that can flow from ‘hate speech’, the Rabat Plan of Action also warns that too frequently, national laws prohibiting ‘incitement’ do not comply with the strict requirements of the ICCPR, but are instead far too broad. Too easily they are then abused to target the types of expression that international human rights law protects.

Arising from misunderstandings of Article 20(2) of the ICCPR, the Rabat Plan of Action identifies a dichotomy:

• On the one hand, there is impunity for real instances of actual incitement to violence, hostility or discrimination, without redress or remedy for the minorities and marginalised groups who are targeted;
• On the other hand, over-broad ‘incitement’ laws are applied abusively to silence or intimidate government critics and dissenters, in particular against persons with minority religions or beliefs, including religious minorities, converts, atheists, and agnostics.

Drawing upon General Comment No. 34 of the Human Rights Committee, the Rabat Plan of Action provides guidance on what Article 20(2) of the ICCPR means when it calls on States to prohibit ‘incitement.’

In particular, the Rabat Plan of Action emphasises that any national laws transposing Article 20(2) ICCPR prohibitions on incitement must only be used as an exceptional measure of last resort. They must also meet the requirements of Article 19(3) of the ICCPR and be:

• Provided for by law: any law or regulation must be formulated with sufficient clarity and precision to enable individuals to regulate their conduct accordingly;
• In pursuit of a legitimate aim, listed exhaustively as: respect of the rights or reputations of others; or the protection of national security or of public order, or of public health or morals;
• Necessary in a democratic society, requiring the State to demonstrate in a specific and individualised way the precise nature of the threat, and the necessity and proportionality of the restriction imposed in response, in particular by establishing a direct and immediate connection between the expression and the threat.

The Rabat Plan of Action sets out a high threshold for limitations on ‘incitement’, putting forward six criteria to determine where expression creates such a danger of harm to justify prohibitions on expression:

1. the social and political context where the expression occurred;
2. the identity of the speaker, e.g. his or her status and influence over their audience;
3. the intent of the speaker;
4. the content and form of the expression;
5. the extent of the expression; and
6. the likelihood and imminence of violence, discrimination or hostility occurring as a direct consequence of the expression.

Even where this threshold is met, any sanctions should be determined on the basis of necessity and proportionality, and criminal responses only used as a last resort. At the same time, any legislative action must be taken in conjunction with comprehensive anti-discrimination laws.

The repeal of blasphemy laws

The Rabat Plan of Action expressly calls for the repeal of blasphemy laws, drawing upon the guidance of the Human Rights Committee in their General Comment No. 34. It identifies how prohibitions on blasphemy seek to protect religions or beliefs themselves from scrutiny, debate, insult or even ridicule, which can’t be considered a legitimate aim under Article 19(3) of the ICCPR.

The Rabat Plan of Action identifies two more reasons why blasphemy laws violate international human rights law:

• Blasphemy laws are discriminatory, and fuel division: blasphemy laws discriminate against minorities and dissenters, limiting open and robust debate on important matters, including but not limited to religion or belief. Rather than encouraging mutual understanding, they fuel division by shutting down debates, often denying already marginalised groups the opportunity to speak or be heard, and are used to justify incitement to violence, as well as acts of violence by State and non-State actors, against those with minority views.
• People are rights-holders, abstract ideas or beliefs are not: international law requires States to respect, protect and promote the rights of individuals to have, adopt and manifest a religion or belief of their choosing, and to protect individuals from discrimination on the basis of their religion or belief. It does not protect the ideas, religions or beliefs themselves as such. Neither does it entitle individuals to have their ideas, religion, or beliefs protected from scrutiny, debate, insult or even ridicule.

Maintaining that blasphemy laws are incompatible with international human rights law is not the same as agreeing with or supporting blasphemous expression in all circumstances. Rather, it merely requires acknowledging that it is not legitimate for the State to restrict such expression unless it separately constitutes ‘incitement’ as defined by Article 20(2) of the ICCPR. This does not constrain individuals from speaking out against expression that they find offensive, including by peacefully protesting against ‘blasphemy’, as this too is their protected right.

Positive measures for States to promote inclusion, diversity and pluralism

The crux of the Rabat Plan of Action is that violence and discrimination, as well as the advocacy of hatred constituting incitement to these acts, is best prevented through open dialogue rather than through censorship. The Rabat Plan of Action calls for a variety of positive policy measures from States, many of which support aspects of the eight-point action plan in Council Resolution 16/18.

In addition, it also emphasises the following measures for States to take:

• Create equality bodies or enhance the function of national human rights institutions established in accordance with the Paris Principles, to promote dialogue, but also in relation to accepting complaints about incidents of incitement under Article 20(2) of the ICCPR;
• Create mechanisms and institutions to systematically collect data in relation to incitement under Article 20(2) of the ICCPR;
• Establish a public policy and a regulatory framework which promotes pluralism and diversity of the media, including new media, and which promotes universal and non-discriminatory access to and use of means of communication;
• Promote and provide teacher training on human rights, and strengthen intercultural understanding as part of the school curriculum for pupils of all ages;
• Build the capacity of security forces, law enforcement agents and those involved in the administration of justice on issues concerning the prohibition of incitement under Article 20(2) of the ICCPR;
• Strengthen the current international human rights mechanisms to provide advice and support to States with regard to national policies for implementing human rights law.

Mobilising society to speak out against intolerance

The Rabat Plan of Action includes extensive guidance to various stakeholders relevant to implementation of the commitment in HRC Resolution 16/18 to speak out against intolerance (paragraph 5e). It takes a ‘whole of society’ approach to promoting inclusion, diversity and pluralism, underscoring the importance of open civic space and the involvement of a range of different actors in addressing intolerance. The Rabat Plan of Action endorses the Camden Principles on Freedom of Expression and Equality, which sets out the moral and social responsibilities that the media, politicians, religious leaders and civil society each have to combat intolerance.

The media have responsibilities to:

• Take care to report in context and in a factual and sensitive manner, while ensuring that acts of discrimination are brought to the attention of the public;
• Be alert to the danger of furthering discrimination or negative stereotypes of individuals and groups in the media;
• Avoid unnecessary references to race, religion, gender and other protected characteristics that may promote intolerance;
• Raise awareness of the harm caused by discrimination and negative stereotyping;
• Report on different groups or communities and give them the opportunity to speak and to be heard in a way that promotes a better understanding of them, while at the same time reflecting the perspectives of those groups or communities;
• Reflect in voluntary professional codes of conduct for the media and journalists the principle of equality, and take effective steps to promulgate and implement such codes.

Politicians and political parties have responsibilities to:

• Political leaders should refrain from using messages of intolerance or expressions which may incite violence, hostility or discrimination, speak out firmly and promptly against ‘hate speech’, and make clear that violence can never be tolerated as a response to incitement to hatred;
• Political parties should adopt and enforce ethical guidelines in relation to the conduct of their representatives, particularly with respect to public speech.

Civil society and national human rights institutions have responsibilities to:

• Create and support mechanisms and dialogues to foster intercultural and interreligious understanding and learning.

Religious leaders have responsibilities to:

• Refrain from using messages of intolerance or expressions which may incite violence, hostility or discrimination;
• Speak out firmly and promptly against ‘hate speech’; and,
• Make clear that violence can never be tolerated as a response to incitement to hatred.

In relation to the role of religious leaders, the OHCHR has built upon the Rabat Plan of Action to launch the Beirut Declaration and its 18 commitments on ‘Faith for Rights’. This framework provides space for a cross-disciplinary reflection and action on the deep, and mutually enriching, connections between religions and human rights. The objective is to foster the development of peaceful societies, which uphold human dignity and equality for all and where diversity is not just tolerated but fully respected and celebrated.