TELLEN

By: Marcela Szymanski, Editor in Chief, Religious Freedom in the World 2021

 

1. Definitions

For our report, we have studied, and used, the following sources in order to develop the definitions and parameters that will be used:

•  Office of the High Commissioner for Human Rights (webpages)

•  UN Special Rapporteur on Freedom of Religion or Belief,

•  The Organization of Security and Cooperation in Europe, OSCE, and its Office for Democratic Institutions and Human Rights ODIHR (webpages as found under: http://hatecrime.osce.org/what-hate-crime)

•  Dr. Mattia F. Ferrero, the Holy See’s National Point of Contact on Hate Crimes with OSCE/ODIHR.

•  Dr. Heiner Bielefeldt, professor at the University of Erlangen and former UN Special Rapporteur on Freedom of Religion or Belief (webpages and personal interviews)

•  Prof. Massimo Introvigne, founder of BitterWinter.org and of Center for the Study of New Religions  (webpages and personal interviews)

•  EU Guidelines for the Promotion and Protection of Freedom of Religion or Belief (conversations with the responsible staff and policy-makers)

•  UN Convention for the prevention and punishment of Genocide (1948)

•  Observatory on Intolerance and Discrimination against Christians (webpages and conversations with Ellen Fantini)

•  Dr Gregor Puppinck, conversations on the philosophy of Freedom of Religion, government competences and limits to this freedom

 

Reports by the following organizations, particularly their methodology section, have been reviewed including:

•  OSCE/ODIHR

•  US Department of State

•  US Commission for International Religious Freedom (USCIRF)

•  Pew Research Center

•  Open Doors/Worldwatch List

•  Reports by the European Parliament Intergroup on Freedom of Religion or Belief and Religious Tolerance

•  The library of Human Rights Without Frontiers (www.hrwf.org )

•  The library of Forum 18 (www.forum18.org)

 

Texts by experts including:

•  John Newton’s “Religious Freedom in Modern Societies”

•  Jose Luis Bazán’s “Discurso del odio, corrección política y libertad de expresión”

•  Marcela Szymanski’s “Which Religious Freedom we defend today?”

 

a) Freedom of Religion or Belief (FoRB)

Article 18 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance”. (Source: http://www.un.org/en/universal-declaration-human-rights/)

Freedom of thought, conscience, religion or belief is enshrined in Articles 18 of both the Universal Declaration of Human Rights (UDHR) and of the International Covenant on Civil and Political Rights (ICCPR), which should be read in the light of the UN Human Rights Committee’s General Comment n°22.

Under international law, FoRB has three components:

a) the freedom to have or adopt a religion or belief of one’s choice – or no belief at all,

b) the freedom to change of religion, and,

c)  the freedom to manifest one’s religion or belief, individually or in community with others, in public or private, through worship, observance, practise and teaching.

Freedom of religion or belief is also protected by Article 9 of the European Convention on Human Rights and Article 10 of the EU Charter of Fundamental Rights.” (Source: paragraph -10 of the EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief)

 

b) Limits to Freedom of Religion

According to the UN Special Rapporteur on FoRB’s webpges (http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx), the limits to this fundamental freedom are determined by:

•  The fundamental Human Rights of others, as per the Universal Declaration of Human Rights (UDHR)

•  Public interest. Demonstrable risk to public order and health

 

Also, the Commission on Human Rights resolution 2005/40 (paragraph 12) and Human Rights Council resolution 6/37 (paragraph 14) explains that limitations of FoRB are permissible under international human rights law if they fulfil each and every one of the following criteria:

a) the limitation is prescribed by law;

b) the limitation has the purpose of protecting public safety, public order, public health or morals, or the fundamental rights and freedom of others;

c) the limitation is necessary for the achievement of one of these purposes and proportionate of the intended aim; and

d) the limitation is not imposed for discriminatory purposes or applied in a discriminatory manner.

In spite of being considered obvious to some, we deem important to highlight that the right to FoRB exists along with Article 3 of the UDHR: Everyone has the right to life, liberty and security of person.

 

Freedom of Religion is therefore not an “absolute right” as it has limitations, but it is nevertheless a “non-derogable right” that cannot be suspended in a state of emergency.

 

2.Determining whether an incident is a FoRB violation

For this Report, the first aspect that determines whether a violation of FoRB has taken place is to observe the outcome of an action and compare it to the elements of the description of the fundamental right. Consider that a violation might have occurred whether it was intentional or non-intentional, by the perpetrator against the victim(s). More often it is clear that an intentional action was perpetrated because of either the religion of the perpetrator or the religion of the victim, but sometimes the violation is unintentional. One example is what happened in Iceland, when by forbidding sexual mutilation for girls, then extending it to “children” in order not to be discriminating toward one sex, the law impinged in the tradition of circumcision practised by a particular religious group. This was not an intentional violation of freedom of religion, but it did become one. For a more complete list of FORB violations, linked to other fundamental rights and typified by the United Nations, please scroll down the following webpage: http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx

 

3. Determining what type of violation of FoRB is described in the Report

For this Report, we understand a violation to FoRB as a process, where we distinguish four stages. The definitions and what constitutes the passage to the next stage are described below to the best of our capacity. Exceptions, of course, will occur so, please contact the Editor for any queries. A grid listing manifestations of each type of violation appears at the end of this document, and is assembled from the different sources we cite. These are the main types of violations:

a) Intolerance. 

b) Discrimination.

c) Persecution.

d) Genocide.

 

4. Classifications

a) Tolerance/Intolerance. This ranges from “no problem at all” to various degrees of ‘intolerance’, which exist to some extent in all countries and cultures. It takes, however, a turn for the worse when intolerance is openly shown and remains uncontested by the relevant authorities. A “new normal” starts to take shape. We identify here a stage where intolerance develops with the repetition of uncontested messages portraying a particular group as dangerous or noxious in a society. Intolerance occurs principally on a social and cultural level – clubs, sporting events, neighbourhoods, press articles, political discourse and popular culture such as cinema and television. Often, citizens’ public demonstrations and marches to support an unrelated cause, turn violent either spontaneously or not, against a particular group or their property, and are allowed to continue undisturbed. The choice of the authorities not to react nor contest, is a tacit approval of this form of intolerance. Opinion leaders at all levels (parents, teachers, journalists, sports stars, politicians, etc.) can become promotors of these messages.

However, at this stage, the aggrieved still have recourse to law. Intolerance is not yet ‘discrimination’. Fundamental rights to non-discrimination still apply.

Acts of intolerance usually fall outside the scope of the criminal law framework. Acts of violence, however, perpetrated with a particular bias are properly hate crimes, and are typified within the criminal law. Cases of “hate speech” are not hate crimes because they are not violent acts and they are not ruled in every country by the criminal body of law.

Intolerance is the most difficult to quantify as it is more often defined as a ‘feeling’. But it conditions the environment with the repetition of negative messages portraying a group as dangerous to the status quo. If at all, the negative messages are contested by individuals or opinion leaders, who then point the finger to less defined entities such as “the media” or “the local culture”, or to certain political figures. However, if the victim does not report acts of intolerance, or the authorities do not react firmly against it, the ground is prepared for worse.

Diskriminierung This follows where intolerance goes unchecked. Discrimination occurs when there are laws or rules that apply to a particular group and not to all. The hallmark of ‘discrimination’ is a change in law which entrenches a treatment of, or a distinction against, a person based on the group, class, or category to which that person belongs. There are instances of direct and of indirect discrimination. It is direct when the actions are clearly directed to an individual belonging to a particular faith, and indirect discrimination when for example a company only hires professionals from a particular level of schooling, from which those in a religious group are banned from registering. In this case, it is usually the State that becomes the perpetrator, violating religious freedom. In the West, these violations occur in cases of limitations to freedom of conscience, often linked to a profession or branch of education, which is also protected by Article 18. Blasphemy laws, because they place one belief above all others, and because they are protective not of an individual but of a group, appear at this stage. Although discrimination might be legal domestically, it falls within the domain of international law. It remains illegal according to the UDHR and UN conventions as well as to regional conventions (and OSCE commitments). Victims, after exhausting national channels, can rely on the international community for help. Instances of discrimination include limitations in access to jobs (including public office), denial of emergency aid unless the recipient belongs to a particular faith, lack of access to Justice, the inability to buy or repair property, to live in a certain neighbourhood or to display symbols of faith. For example, in 2020, limitations during the Covid-19 pandemic sometimes locking down temples but leaving shops open, appeared to be applied in a disproportionate and discriminatory way against religious groups.

c) Persecution: This stage usually follows discrimination and includes “hate crimes”. Acts of persecution and hate crimes are performed by a biased perpetrator, who may or may not know the religious identity of the victim. Acts of persecution and hate crimes are typified under national criminal law and/or international law. Persecution and discrimination usually co-exist, the one building upon the other. However persecution by, say, a local terrorist group can exist in a country without State-driven discrimination being present. Persecution might be an active programme or campaign to exterminate, drive away, or subjugate people based on membership of a religious group. This happens for example in Africa where farmers, who might be Christians, are systematically attacked by herders, who might be Muslim, under the pretext of a climate change effect. Acts of violence (often fuelled by the public discourse and group thinking) may be perpetrated by single individuals. Acts of persecution need not be “systematic” nor occur following a strategy.

Both State and non-State actors may persecute any given group, but at this stage that group has no recourse to State law. Private actors who commit hate crimes against a group are unlikely to be punished. Victims are “legally” abused, dispossessed and sometimes killed. Persecution can be identified and verified through the victims’ testimony, media reports, government and NGO reports or via local associations, but this verification is often impeded by continued violence, and it could take several years to achieve.

Violence frequently accompanies persecution. Violence turns these acts into hate crimes. Individuals belonging to minority groups may be subject to murder, expropriation and destruction of property, theft, deportation, exile, forced conversion, forced marriage, blasphemy accusations, etc. These acts may take place “legally” according to the national laws. In extreme cases “persecution” may turn into genocide.

The definition of “hate crime” we use is from ODIHR: “Hate crimes are criminal acts motivated by bias or prejudice towards particular groups of people. To be considered a hate crime, the offence must meet two criteria: First, the act must constitute an offence under criminal law; second, the act must have been motivated by bias.”  For the consideration of this report, the action/inaction of the Justice instances toward hate crimes is very important.

In countries where the rule of law is functioning (as in most Western democracies), courts may address instances of persecution as hate crimes. In many countries, however, there is no recourse to law regarding intolerance nor some forms of hate crimes, and persecution might be difficult to prove in front of a tribunal. Hate crimes, where a clear religious bias must be found, can follow the “normalisation” of intolerance messages and discrimination is settling in. These crimes are often perpetrated by non-State, private actors. Intolerance and discrimination however, are seldom contemplated in the applicable criminal law, and are perpetrated by both public and private actors.

d) Genocide: It is the ultimate form of persecution where only the international law seems to be capable to intervene. Genocide comprises “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, as per the UN Convention on the Prevention and Punishment of Genocide, adopted on 9 December 1948 (http://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx ). It is not a ‘requisite’ to be dead in order to be a victim of genocide, as the acts in question include:

•   Killing members of the group;

•  Causing serious bodily or mental harm to members of the group;

•  Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

•  Imposing measures intended to prevent births within the group;

•  Forcibly transferring children of the group to another group

Also, not only perpetrators are liable by this convention but also those who conspire, incite to commit it or are complicit to its realization. After the European Parliament approved a resolution calling genocide the acts of Daesh against Christians and Yezidis (4Feb2016), many other nations followed suit including the United States. By creating a mechanism for bringing Daesh to justice (Res.2379) on 21 September 2017, the UN also is seeking to establish whether genocide has taken place.  http://www.un.org/en/genocideprevention/genocide.html

 

5. Perpetrators of ‘Intolerance’, ‘Discrimination’, ‘Persecution’ and ‘Genocide’:

Today, entities such as ISIS/Daesh and its multiple affiliates, Al-Qaeda, Boko Haram or the drug/human trafficking cartels are no longer subject to the traditional definition of State vs. non-State actors. In countries or regions where the State is no longer in control (and in some cases where the State becomes a victim) and where the de-facto ‘laws’ of the group in power violate fundamental human rights, then such group becomes accountable to both the national and the international community.

We distinguish the following types of perpetrator:

a) The State (whether federal, regional or, municipal)

b) Local non-State actors (including violent religious leaders, land-grabbing mobs, supremacist religious groups, and local branches of groups like the Taliban in Pakistan and Afghanistan, Boko Haram in Nigeria, etc.),

c) Multinational criminal or terrorist organizations (such as ISIS/Daesh, Al-Qaeda, Al-Shabab, Boko Haram, etc.)

 

6. Trends over the period covered and Prospects for the next two years:

In our experience two years is a significant period to observe the effects of changes introduced either by the State or de facto by non-government groups. We have introduced a new level of categorization, the “observe closer” category. We intend this category to signal a country where a variety of actors are moving toward the next level of FORB violation.  The estimation of prospects is based on the incidents cited in the country report and other information obtained by the author.

 

A grid to help distinguish between Religious ‘Intolerance’, ‘Discrimination’, ‘Persecution’, and ‘Genocide’

In any event, the incident must have a clear Religious Bias, and not be the effect of general insecurity

 

Category (indicative list, as these acts are the most frequent)
Intolerance  
  Threats
  Hate speech
  Intimidation
  Vandalism
 
Diskriminierung
  Official religion imposed
No conversion (consequence of official religion imposed)
Accusation of blasphemy possible
Prohibition to worship outside temples
No access to property (nor to repair or maintain)
No protection/security of property
No access to certain jobs
No access to public office
No access to funding
No access to certain type/level of education
No display of religious symbols
No right to appoint clergy
No observance of holidays
No evangelization, no materials available
No communication with other religious groups national and international
No right to own media
No right to establish and fund charitable and humanitarian institutions
No right to conscientious objections and “reasonable accommodation” at workplace and services provision
Verfolgung
Murder, mass or individual
Detention
Abduction, enslavement
Forced exile
Expropriation of buildings, assets, funds, even if “legal”
Occupation of property
Physical assault, mutilation, battery, maiming
Freedom of expression severely curtailed, harsh sentences/punishments
  Intimidation, threats
Property damage (also representative of the religious group, not only individual)
  Any other crime
Genocide
Killing members of the group
Causing serious bodily or mental harm
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
Imposing measures intended to prevent births within the group
Forcibly transferring children of the group to another group