As heated opposition began mounting last week in response to three possibly navel-gazing, possibly blasphemous tweets, 23-year-old Saudi national Hamza Kashgari undoubtedly regretted his announced intention to only speak with Mohammed “as a friend, no more.” But as Kashgari is forcibly deported from Malaysia following an abortive escape from the Saudi Kingdom, he will also regret the failure of the international community to more decisively reject efforts by his government and other member states of the Organization for Islamic Cooperation to establish an international norm prohibiting defamation of religion.

The OIC-led campaign to recognize defamation of religion as a violation of international human rights stretches back to 1999. However, it ostensibly came to an end in 2011 with a much- celebrated “consensus” resolution at the United Nations aimed instead at “Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief.”

Impressively, the new consensus formulation omitted reference to defamation for the first time in over a decade. This fact prompted the United States and others to herald passage of the resolution as a “historic” event that put an end to years of “divisive debate” at the UN. In an effort to build on this consensus, the US in collaboration with the OIC late last year hosted a series of closed- door meetings to advance the “Istanbul Process,” a framework aimed at developing implementation strategies for the resolution.

But as Kashgari’s unfolding case indicates, this consensus approach is fatally flawed due to the simple fact that it failed to categorically discredit the “defamation of religion” chimera.

Even in the afterglow of initial passage of the consensus resolution, the OIC has continued to assert through statements at the UN and internal resolutions adopted by its own 57 member states that the defamation of religion concept retains international legitimacy. At the same time, the OIC has justified its endorsement of the consensus resolution on combating intolerance in Clausewitzian terms, as an alternative strategy for achieving the same objective as its desired ban on defamation of religion, namely prohibiting any perceived criticism or insult of religion.

In the face of the OIC’s repeated assertion that defamation of religion continues to enjoy international legitimacy, the US and other concerned states have remained virtually silent. The illusion of a consensus ending years of acrimonious debate at the UN has apparently caused these governments to lose sight of the crux of this debate: whether international law should countenance privileging the subjective ideas and beliefs of various religions at the expense of individual human rights. From this perspective, the consensus approach also has failed in a profoundly practical regard by doing nothing to curb prosecutions of individuals on the basis of utterances or actions deemed blasphemous of a predominant faith. The pending Kashgari prosecution – death for three little tweets – throws this into unsettling relief.

Malaysia’s deplorable decision to abide by Saudi Arabia’s request for Kashgari’s return is deadly evidence that an international norm authorizing criminal prosecution – and even extradition – for defamation of religion offenses is alive and well. This reality should be deeply disconcerting to those concerned with maintaining the integrity of the international human rights framework. More immediately, however, it should serve as a trigger for reassessing the wisdom of a consensus strategy premised upon sidestepping or ignoring the specter of defamation of religion.

Rather than maintain the delusion that combating intolerance will prove a viable end to a divisive debate, we need to acknowledge that any genuine consensus on this issue is destined to fail unless defamation of religion is formally repudiated. Until such a time, progress within the Istanbul Process should be suspended. Concerned diplomats and human rights activists alike should return to familiar if divisive fault lines and redouble efforts to condemn and abolish the criminal sanction of blasphemy.

In Kashgari’s case, such efforts could – and should – have included massive international pressure on Malaysia to refuse the Saudi request to deport. More generally moving forward, governments that previously voted against defamation of religion resolutions should inquire of their counterparts that abstained whether they view Kashgari’s fate as comporting with international human rights law protections. Likewise, individual OIC members with ties to western states should be surveyed and new post-Arab Spring governments coming online should be asked to clearly set out their intentions with respect to international human rights obligations.

In each of these cases, outcomes can be rewarded in the context of diplomatic, trade, military, or other incentives. Even if a UN- sanctioned rejection of defamation of religion proves unachievable and we are left debating its illegitimacy, nothing can justify supporting a framework intended to combat intolerance that allows acts of unbridled intolerance to flourish against Kashgari and others like him.

The author is an associate professor of law at the University of Tennessee College of Law. (© 1995-2011, The Jerusalem Post 02/23/12)