A right is not a right if it denies others’ rights

The European Court of Human Rights has recently upheld the German government’s decision to ban Hizb Ut-Tahrir. This case is interesting for institutions for its invocation of the little-used article 17 of the European Convention on Human Rights, which provides that nothing in the Convention may be interpreted as implying for any state, group or person any right to engage in any activity aimed at the destruction of any of the Convention rights and freedoms or at their limitation to a greater extent than already provided for in the Convention.

Hizb Ut-Tahrir was reported as advocating “the overthrow of governments throughout the Muslim world and their replacement by an Islamic State in the form of a recreated Caliphate”.  In particular, on the basis of literature disseminated by Hizb Ut-Tahrir, the German government considered that Hizb Ut-Tahrir denied the right of the State of Israel to exist, called for its destruction and that of its inhabitants and sought to justify suicide attacks in which civilians were killed.  In doing so, the German government regarded Hizb Ut-Tahrir’s activities as contrary to the principle of international understanding and concluded that the group advocated the use of violence to achieve its political and religious aims.

Hizb Ut-Tahrir challenged the ban, claiming inter alia that it violated the rights to freedom of religion, peaceful assembly and expression.

In rejecting Hizb Ut-Tahrir’s claim, the court relied on article 17 whose purpose is to prevent individuals with totalitarian aims from exploiting in their own interests the rights guaranteed by the Convention. The court concluded that Hizb Ut-Tahrir sought to use the rights to freedom of religion, peaceful assembly and expression to deflect from their true purpose by employing them for objectives which were clearly contrary to the values of the Convention (i.e. the commitment to the peaceful settlement of international conflicts and to the sanctity of human life).

Freedom of expression in particular is a prerequisite for participation in a democratic society. Equally, it is indispensible to any educational institution committed to the advancement of knowledge. As this case emphasises, however, such precious rights cannot be used to abuse the very principles they were intended to uphold. Institutions can therefore take a robust approach to any group purporting to be exercising human rights which, for example, promote violence as a means of achieving its goals.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E: geraldine.swanton@sghmartineau.com
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