LONDON, January 17 (Sputnik) — The horrific recent terrorist attacks in Paris have provoked understandably strong reactions in France and elsewhere. Now that the immediate shock has passed, it seems to be a good moment to take stock.
Firstly, it is important to state the single overriding fact regarding this affair. This is that a group of exceptionally dangerous criminals instigated a grotesque carnival of violence during which they terrorized a whole city, and that almost 20 people were killed.
Given the extraordinary violence of their behavior, it is a virtual certainty that these people would have found some reason to engage in violent activity sooner or later. The publication by the magazine Charlie Hebdo of cartoons, which were seen by many Muslims as insulting the Prophet Muhammad, should be seen for what it surely was — a pretext for their violence and not the ultimate cause of it.
Militant jihadism exists independently of the cartoons Charlie Hebdo published. No one can seriously claim that the publication of cartoons by Charlie Hebdo — or indeed by any other satirical magazine in Europe or elsewhere — caused it.
This is not, of course, to say that violent jihadism does not in part owe its existence to the West.
Firstly, there is no question that the troubled state of the Muslim world, which gave it birth, is in part the consequence of colonial policy, such as the artificial borders that were imposed on the region by the great powers after the First World War, the history of Anglo-French imperialism in the region, European and American support for autocratic Arab oil monarchies and dictatorships, and the international community's ongoing failure to resolve the Arab-Israeli dispute.
Also, Western attitudes to violent jihadism are schizophrenic and contradictory: the West supported jihadist Mujahedeen fighters in Afghanistan in the 1980s, and backed Islamist militants in Chechnya in the 1990s and 2000s, as well as in Libya in 2011 and in Syria for much of the ongoing civil war there.
This manipulative approach to a very violent phenomenon has proved continuously counter-productive, as President Vladimir Putin recently said. It may have been directly so in the case of the terrorist attacks in Paris if early reports that some of those involved in them received training in Syria turn out to be true.
There are other factors that can't be disregarded. The deeply dysfunctional state of parts of the Muslim world and of the Arab world in particular is only partly the result of Western policy. Muslims and Arabs must also take some responsibility for it. For example, the failure to achieve a solution to the Arab-Israeli conflict is as much a consequence of Arab disunity as of Western policy. The economic failures of the region and the growing inequalities there have been caused by internal structural problems more than the policies of foreign governments.
Some Muslims who have chosen to settle in the West have also found it very difficult to adjust to the cultural and social standards and mores of Western societies, as well as to economic conditions there. Some Westerners, through acts of hostility and discrimination against Muslims, have made that process of adjustment more difficult. There is no doubt that this has resulted in feelings of anger and alienation on the part of some Muslims and that some of them have, as a result, turned to violent jihadism, though the number who have done so is small.
The essential point, however, is that although some of the cartoons published by Charlie Hebdo were undoubtedly offensive to Muslims, what happened was an act of appalling terrorism by followers of a far-flung movement of global jihadism. The popularity of that movement has multiple causes behind it that go far beyond the hurt feelings produced amongst some Muslims by a few cartoons.
That is not, however, to say that all Western responses to this atrocity are equally valid.
One specific — and very common — Western response is to treat the attack as one on what is considered to be the specifically Western principle of free expression, which is said to be absolute and non-negotiable, rather than as a generic example of jihadi terrorism. This claim is made despite the numerous examples of random terrorist violence that have occurred in France and elsewhere in Europe.
This kind of response makes the attack out to be not merely an act of jihadi terrorism, but rather a peculiarly grotesque and murderous form of Muslim censorship of Western free expression.
Is this really the case?
Western politicians and journalists say they need to be clear about the nature of the principle of free expression that they claim to be upholding.
There undoubtedly is a philosophical tradition within European culture and society that sees freedom of expression as an absolute right and which vigorously opposes any limitations upon it. However, that is not the view of contemporary European governments and it is certainly not the view of the government of the UK. On the contrary, here in Britain there are clear legal limits to the right of free expression, which I have no doubt would apply to the sort of cartoons Charlie Hebdo published.
The key provision is Section 5 of the Public Order Act 1986, which reads, in part, as follows:
Harassment, alarm or distress.
1. A person is guilty of an offence if he…
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting…within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."
The offence is aggravated where it is carried out for racial or religious reasons. The relevant law here is Section 31 of the Crime and Disorder Act 1998, which reads in part as follows:
Racially or religiously aggravated public order offences.
1. A person is guilty of an offence under this section if he commits…
(c) an offence under section 5 of that Act (harassment, alarm or distress), which is racially or religiously aggravated for the purposes of this section."
The meaning of the words “racially and religiously aggravated” are defined by Section 28 of the Crime and Disorder Act 1998, which reads as follows:
Meaning of 'racially or religiously aggravated'.
1. An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if…
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
2. In subsection 1.(a) above — 'membership', in relation to a racial or religious group, includes association with members of that group; 'presumed' means presumed by the offender.
3. It is immaterial for the purposes of paragraph (a) or (b) of subsection 1. above whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.
4. In this section 'racial group' means a group of persons defined by reference to race, color, nationality (including citizenship) or ethnic or national origin.
5. In this section 'religious group' means a group of persons defined by reference to religious belief or lack of religious belief.”
Having seen some of the cartoons published by Charlie Hebdo, I have no doubt that the British authorities would consider that the authors had committed a racially and religiously aggravated offence under Section 5 of the Public Order 1986 and Section 31 of the Crime and Disorder Act 1998 and would take steps to prevent their publication in Britain.
I realize there are some people who, reading the above sections (and Section 28 of the Crime and Disorder Act 1998 in particular), will take issue with this and will try to argue that the cartoons published by Charlie Hebdo were not racist or religiously motivated because Charlie Hebdo is not hostile towards Muslims as a religious group but only towards Muslim terrorists or reactionary Muslim fundamentalists. All I would say about that is that given some of the representations in the cartoons, especially those that depict Muhammad in what to Muslims must seem an exceptionally mocking and obscene way, I personally have no doubt that a British court would say that they commit a racially and religiously motivated public order offence under Section 5 of the Public Order Act 1986 and Section 31 of the Crime and Disorder Act 1998.
As for the defense of Charlie Hebdo one sometimes hears, that the magazine was not racially or religiously prejudiced against Muslims because it also published equally vitriolic cartoons about other religions, that defense would cut no ice in a British court. Prejudice against all religions is not a defense against a religiously motivated offence against the followers of one of them, just as a racially-motivated assault on a black African man does not cease to be a racist assault simply because the attacker is equally or even more prejudiced against people from the Indian subcontinent.
This British approach is fully in line with European law. Some European countries still have blasphemy laws that go considerably further than the British law does. Article 10 of the European Convention of Human Rights, which legally defines the principle of free expression and which all member states of the European Union, including France and Britain, are required to observe, states quite clearly that freedom of expression is a qualified, rather than an absolute right. The exact words are:
Freedom of expression
1. Everyone has the right to freedom of expression. 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
In other words, while the European Convention of Human Rights establishes the right of free expression, which the European Court of Human Rights has said may be exercised in ways that may cause some people offence, Article 10 entitles states to restrict free expression for various reasons including "to prevent disorder or crime" and for "the protection of the reputation or rights of others."
The proviso is that any restrictions must be "necessary in a democratic society." The limits on free expression set by Section 5 of the Public Order Act 1986 and in Sections 28 and 31 of the Crime and Disorder Act 1998 flow from this proviso, and are intended to be “necessary in a democratic society.”
It is said that France is different and that the cartoons published by Charlie Hebdo in France fall within a long tradition extending all the way back beyond the Revolution to the 18th century Enlightenment and before that even to Molière.
France was indeed a pioneer in establishing the right of free expression. The key text referencing this right is Article 11 of the Declaration of the Rights of Man and of the Citizen of 1789, which reads:
"The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law."
Even at the time of the French Revolution, as the wording of Article 11 obviates, free expression was not an absolute right. The law could impose restrictions to prevent its abuse.
That, in fact, is what has been happening. While the starting point in France remains the very liberal Law on Freedom of the Press of 29 July 1881, over the last 40 years, the right to free expression has been increasingly restricted in a way that puts France in line with general European practice.
Thus, since 1972, incitement to hatred, discrimination, slander and racial insults has been prohibited. Since 1990, this prohibition has been extended to include racist, anti-Semitic or xenophobic activities, including Holocaust Denial (the latter not a crime in Britain). Since 2004 it has been further extended to include hatred against people because of their gender, sexual orientation or disability.
The very fact that Charlie Hebdo has been able to publish its cartoons shows that the political and legal climate is still more liberal in France than elsewhere in Europe, including Britain. However in their content and purpose, the actual laws in Britain and France do not differ so much and both now take their cue from Article 10 of the European Convention of Human Rights.
When European politicians and journalists declare that the terrorist attacks in Paris were an attack on free expression, they appeal to a principle which they portray as absolute and non-negotiable, when in reality they are busy restricting it. For someone like me, who lives in Britain, such comments are especially odd coming from politicians and journalists in a country where the free expression at issue in this case, the publication of cartoons like those published by Charlie Hebdo, would not be allowed.
The justification and reason for these restrictions can be found in Article 10 itself. The proviso on any restrictions on the right of free expression is that they must be "necessary in a democratic society." It is now accepted in the West (both in Europe and the United States) that a democratic society is one that protects everyone, including vulnerable minorities, and that the rights of some cannot be exercised at the price of the rights of others. A society that fails to do this and which privileges the rights of some over the rights of others is no longer regarded as democratic.
The result has been a steady increase in rights and legal protections against racism, against harassment and the abuse of people belonging to minority religious and ethnic groups and of people with different sexual orientations and of people with disabilities.
This thinking has found its way into the European Convention of Human Rights itself. Protocol 12, Article 1 now contains a general prohibition against discrimination "on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." Article 17 says "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."
The right of free expression cannot therefore be used to allow discrimination against others on racial or religious grounds. Whilst the European Convention of Human Rights does not positively oblige states to suppress free expression where it is racist or discriminatory, national laws that restrict it for this reason such as the ones in Britain and France that I have discussed, do so without breaching the Convention and are in its spirit.
This process has not been uncontroversial but it now represents the European consensus. At the very highest level, the European Union has adopted it. It would be impossible for a state to become a member of the European Union if it did not accept it.
The claim that the right of free expression in the West is absolute and non-negotiable and that Charlie Hebdo has an absolute right to publish its cartoons and that this is an inherent part of Western culture, is therefore quite simply wrong. On the contrary, it is allowing the publication of such cartoons that in terms of modern European thought and legal practice has become the anomaly. There is no absolute right or principle of free expression in Europe that would entitle the publication of inflammatory cartoons such as the ones that Charlie Hebdo produced. What there is, is a right to safety and to the protection of the law. That is the right the terrorists violated.
In fact a case can be made that to say that the terrorists who attacked Charlie Hebdo were attacking the exercise of the right of free expression is to surrender the narrative of the attack to them. It is they, after all, who sought to justify their attack as an act defending the honor of Muhammad. Calling the attack an act of censorship admits that motive, and treats what happened not as an act of violence perpetrated by a gang of dangerous criminals but as a religious act performed by people acting in accordance with the commands of their faith. Their claim to be defending Islam, which is rejected by the great majority of Muslims, is thereby vindicated, and their claim that Islam and democracy are incompatible (since democracy is protecting the publication of material Muslims see as both racially and religiously offensive and taboo) is shown to be true. Dividing lines are thereby drawn between Muslims and non-Muslims, which of course is exactly what the jihadi movement wants to do.
Whenever an incident of this sort takes place, different facts are derived from it. Not all facts, however, have equal value. In this case, the overriding fact, the one that carries the overwhelming preponderance of weight, is that a group of dangerous criminals ran amok in Paris, terrorizing the whole city and brutally murdering 17 people.
Their victims were not, however, chosen at random. On the contrary, their victims were chosen very carefully to portray the criminals and their actions in what they would say was a good light to the Muslims they wish to win over. This was why two of the criminals, the Kouachi brothers, declared themselves martyrs before they were killed.
In a situation like this, it is better not to make dogmatic statements of principle, which actually have no legal authority behind them, and which play into the criminals’ hands, helping them achieve their objective. Quite apart from any other considerations, it is not the best way to show respect for their victims or to protect people from more criminal acts of this sort that might come.
The views expressed in this article are solely those of the author and do not reflect the official position of Sputnik.
