Elizabeth A. Clark is Associate Director, International Center for Law and Religion Studies and Regional Advisor for Europe at the J. Reuben Clark Law School, Brigham Young University

Presentation at the Ministerial to Advance Freedom of Religion or Belief (November 16, 2020, Warsaw, Poland)

In working with government officials and others around the world, I often hear arguments along these lines: religion and religious extremists pose an existential threat to our country. Freedom of religion or belief is a luxury we cannot afford [1]. We have a responsibility to our people to screen out religious groups that are extremist or a danger to the community. We need to have laws limiting registration and banning extremist groups. Our national security depends on it.

Although this has a certain logic, empirical research shows that this argument turns out to have it backward.  Using registration as a means of screening out new, unknown, or potentially threatening religious groups has been shown to undermine security and increase the likelihood of religion-related violence.

Why does this make sense, you may ask? Let me step back for a minute and look at the kinds of laws I am talking about. Most governments have some form of laws regulating access to a legal entity status. Depending on the country, compliance with these registration laws provides a variety of benefits. In some, this provides the rights of a basic legal entity and is needed to have legal status, open a bank account, enter into contracts, seek legal protection, or rent or purchase property and obtain land-use permits [2]. In some countries, registration is also needed to engage in individual or communal manifestations of religion such as engaging in worship services, distributing religious literature, sharing religious beliefs, running charitable or educational institutions, obtaining tax exemptions, serving as chaplains in hospitals or the military [3].

In some countries, compliance with registration laws is mandatory, while in others these laws are voluntary to more or less of a degree. In some, religious organizations can choose to register using any of several forms, including that of non-profit organizations, while some countries require religious organizations to undergo registration as a religious association only.

What these differences illustrate is that in essence there are two opposing poles for how registration is understood: as a way to facilitate freedom of religion or belief by permitting religious groups access to the benefits of legal personality, or as a method of controlling religions and religious practice [4]. Unfortunately, there has been a documented increase in the “percentage of countries requesting groups to register, … increased requirements for securing registration, and … increas[ed] percentages openly discriminating against unregistered groups” [5].

Today I would like to look at some of the problems that come when registration and de-registration are used as a method of control in an attempt to promote national security.

First, the legal problems. International norms indeed protect the individual right to security of a person which, as the OSCE explains, creates an “obligation on the part of the state to protect individuals, groups, and communities from threats such as crime, violence, and terrorism” [6]. This is an essential role of any government.

International norms also protect the right to freedom of religion and belief, including the right in Article 18 of the ICCPR to manifest one’s religion or belief “individually or in community with others and in public or private” [7]. This means as the Special Rapporteur for Freedom of Belief has explained,

The possibility of engaging in various forms of community activities thus clearly falls within the scope of freedom of religion or belief. Thus registration should not be compulsory, i.e. it should not be a precondition for practising one’s religion, but only for the acquisition of a legal personality status [8].

While states may require some administrative procedures before granting legal entity status, international courts have held that freedom of religion or belief includes reasonable access to legal entity status and imposes a “duty of neutrality and impartiality” in ensuring access to legal personality [9].  The Special Rapporteur has explained that

Such an administrative decision should not be misconceived as an act of mercy, however. Under international law, States are obliged to take an active role in facilitating the full enjoyment of human rights, including freedom of religion or belief. By not providing appropriate legal options that, de jure and de facto, are accessible to all religious or belief groups interested in obtaining a legal personality status, States would fail to honour their obligations under the human right to freedom of religion or belief [10].

So individuals have a right to security of a person and freedom of religion or belief, which includes reasonable access to legal entity status. It might make sense to think that because the right to security of a person and freedom of religion and belief are both rights, that states should just balance the two. In fact, it is often suggested that freedom of religion or belief is a soft policy which, while nice to have, must at times be abandoned in favor of hard realities of protecting national security. But the International Covenant on Civil and Political Rights makes it explicit that the right to freedom of religion or belief is non-derogable, even in times of national emergency [11].

Why? The underlying logic to this is explained well in the new OSCE Freedom of Religion or Belief and Security Policy Guidance, which explains that the rights to religion and individual security are “[c]omplementary, interdependent, and mutually reinforcing objects that can and must be advanced together” [12]. National security is best served by protecting freedom of religion or belief.

Several researchers have demonstrated this in recent years as an empirical matter. Nilay Saiya, in Weapon of Peace: How Religious Liberty Combats Terrorism, analyzes every terror attack in the world from 1990-2014 [13]. Saiya uses data from the Pew Research Center and shows that countries with “low” levels of restrictions on religion experience an absence of religious terrorism 99 percent of the time, while countries with “high” levels of restrictions experienced nearly 25 times as many attacks [14]. He and others show that this is causation, not just correlation.

Brian Grim and Roger Finke in The Price of Freedom Denied: Religious Persecution and Conflict in the Twenty-First Century, for example, conduct a robust statistical analysis of religious-freedom conditions and incidents of conflict in 143 countries. They conclude that “to the extent that governments and societies restrict religious freedoms, physical persecution and conflict increase” [15]. Grim and Finke control for related factors like democratic institutions and respect for other human rights and civil liberties. They find that religious-freedom restrictions have a unique relationship with social hostilities. This is true in multiple regions of the world, regime types, and religious demographics. The causal relationship between increased government restrictions on religion and religion-related violence has been reaffirmed by additional recent work as well[16].

Registration laws are particularly significant in this regard. Multiple Special Rapporteurs for Freedom of Religion or Belief have explained that these are an extremely common form of government restrictions that often are used in a way to violate international commitments [17]. These are, in the words of political scientist Ani Sarkissian, “a less obvious way of restricting religious groups than banning or otherwise making them illegal” [18]. She explains that “such restrictions have the veneer of following the rule of law,” but are often manipulated to target specific groups [19]. Unnecessary and disproportionate restrictions can include: an outright refusal to register an organization without giving valid written reasons or for clearly pretextual reasons; requiring re-registration of all organizations under a new law; requiring the approval of other religious communities or multiple levels of government; imposition of waiting periods between application and recognition; or requiring a high number of members, a length of time present in the country, or a high level of specificity or an inquiry into the beliefs of the organization [20].

Mandatory or unnecessarily harsh registration laws are not only problematic because of their restrictive nature, but because they are predictive of even more restrictions on minority religions in the future. These are the canary in the coal mine. Research by Finke, Fox, and Mataic, specifically looks at the question of religious registration laws in 158 countries at 19 points in time to see the consequences of introducing registration laws [21]. They found that introduction of registration laws was highly significant and is followed by subsequent increased restrictions on minority religions. In this regard, it is important to recall the U.N. Human Rights Council’s General Comment 22, where it explains that Article 18 of the ICCPR

is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community [22].

In conclusion, let me return to the finding, counterintuitive for many, that protecting freedom of religion or belief reduces religious conflict and supports the need for national security and security of the person. Why is this the case? Researchers who study this phenomenon, both in general and in specific contexts with high-security risks, like Central Asia, explain that limiting freedom of religion or belief limits the positive social contributions of religious groups; legitimizes the narrative of those who claim they are persecuted by the state, erodes trust between civil society and the state; leads to groups moving underground, making it more difficult to find reliable information on their activities; encourages members of dominant religious communities to engage in violence against religious minorities; and isolates minorities in a way that increases radicalization that leads to violence [23].

In contrast, protecting freedom of religion or belief helps promote security because it permits religious groups to engage in social action, brings spiritual capital into projects such as reducing poverty and engaging in peacebuilding; broadens the marketplace of ideas and brings in more moderate voices; and raises the level of trust and engagement between those who might be otherwise open to the radicalization that leads to terrorism and the state [24]. The OSCE has made excellent recommendations for states, religion or belief communities, and civil society on how to ensure that registration and deregistration issues reflect commitments to freedom of religion or belief and contribute to society, which I commend to you [25].  These can provide a helpful response to the all-too-common narrative that freedom of religion and national security is a zero-sum game.

[1] For a discussion of security as rationale for limiting freedom of religion or belief, see, e.g., Roger Finke et al., Examining the causes of government-based discrimination against religious minorities in western democracies: societal-level discrimination and securitization, 17 Comp. Eur. Polit. 885, 885 (2019); Jonathan Fox, Thou Shalt Have No Other Gods Before Me: Why Governments Discriminate Against Religious Minorities(2020), 53.

[2] See, e.g., Lance Lehnhof, The European Court’s Freedom of Association Cases and the Implications for Islam in Islam, Europe and emerging legal issues, 291, 293(W. Cole Durham, Jr. and Rik Torfs eds., 2012); W. Cole Durham, Jr., Facilitating Freedom of Religion or Belief Through Religious Association Laws inFacilitating Freedom of Religion or Belief: A Deskbook321 (Tore Lindholmet al. eds., 2004); Sylvie Langlaude, The Rights of Religious Associations to External Relations: A Comparative Study of the OSCE and the Council of Europe, 32 HUM. Rts. Q. 502, 516 (2010); Church of Scientology Moscow v. Russia, ECHR App No. 18147/02, 5 Apr 2007, para. 24; Masaev v. Moldova, ECHR App No. 6303/05, 12 May 2009.

[3] See., e.g., Masaev v. Moldova, ECHR App No. 6303/05, 12 May 2009; Church of Scientology Moscow v. Russia, ECHR App No. 18147/02, 5 Apr 2007, para. 24; W. Cole Durham, Jr., Facilitating Freedom of Religion or Belief Through Religious Association Laws inFacilitating Freedom of Religion or Belief: A Deskbook321 (Tore Lindholmet al. eds., 2004).

[4] Jeroen Temperman, Recognition, Registration, and Autonomy of Religious Groups: European Approaches and their Human Rights Implications in State Responses to Religious Minorities 151 (David Kirkham ed., 2013).

[5] Roger Finke, Jonathan Fox, et al, Assessing the Impact of Religious Registration,2017 Journal for the Scientific Study of Religion 56(4), 729.

[6]OSCE Office for Democratic Institutions and Human Rights, Freedom of Religion or Belief and Security Policy Guidance (2019), 6.

[7] International Covenant on Civil and Political Rights, Art. 18

[8] Report of the Special Rapporteur for Freedom of Religion or Belief, Human Rights Council, (2011), para. 41.

[9] See, e.g., Church of Scientology Moscow v. Russia, ECHR App No. 18147/02, 5 Apr 2007; Metropolitan Church of Bessarabia and Others v. Moldova, ECHR App No. 45701/99, 13 Dec 2001.

[10] Report of the Special Rapporteur for Freedom of Religion or Belief, Human Rights Council, (2011), para. 43.

[11] Article 4(2), ICCPR.

[12] Id.

[13] Nilay Saiya, Weapon of Peace: How Religious Liberty Combats Terrorism44 (2018).

[14] Nilay Saiya, Weapon of Peace: How Religious Liberty Combats Terrorism44 (2018).

[15] Brian Grim & Roger Finke, The Price of Freedom Denied 222 (2011).

[16] See, e.g., Roger Finke & Jaime Harris, Wars and Rumors of Wars: Explaining Religiously Motivated Violence inReligion, Politics, Society, and the State(Jonathan Fox ed., 2012); Roger Finke & Dane R. Mataic, Promises, Practices, and Consequences of Religious Freedom: A Global Overview, 15 U. St. Thomas L.J. 587 (2019); Nilay Saiya, Weapon of Peace: How Religious Liberty Combats Terrorism(2018).

[17] Report of the Special Rapporteur for Freedom of Religion or Belief, U.N. Human Rights Council (2007), 17; Report of the Special Rapporteur for Freedom of Religion or Belief, Human Rights Council, (2011).

[18] Ani Sarkissian, The Varieties of Religious Repression: Why Governments Restrict Religion(2015), 34.

[19] Ani Sarkissian, The Varieties of Religious Repression: Why Governments Restrict Religion(2015), 34.

[20] See, e.g., Jeroen Temperman, Recognition, Registration, and Autonomy of Religious Groups: European Approaches and their Human Rights Implications in State Responses to Religious Minorities 151, 154 (David Kirkham ed., 2013)); W. Cole Durham, Jr., Facilitating Freedom of Religion or Belief Through Religious Association Laws inFacilitating Freedom of Religion or Belief: A Deskbook321 (Tore Lindholmet al. eds., 2004).

[21] Roger Finke et al., Assessing the Impact of Religious Registration, Journal for the Scientific Study of Religion (2017) 56(4), 733.

[22] U.N. Human Rights Council, General Comment 22, CCPR/C/21/Rev.1/Add.4 (30 July 1993).

[23] See, e.g., Siaya at 5, Grim and Finke; Kathrin Lenz-Raymann, Securitization of Islam: A Vicious Circle: Counter-Terrorism and Freedom of Religion in Central Asia (2014); OSCE Office for Democratic Institutions and Human Rights, Freedom of Religion or Belief and Security Policy Guidance (2019), 34; Roger Finke & Robert R. Martin, Religious Freedom and Conflict: A Review of the Evidence (2012) (last visited October 30, 2020) (report prepared for the USAID Conflict Management and Mitigation Office).

[24] See, e.g., Siaya at 5, Grim and Finke; Kathrin Lenz-Raymann, Securitization of Islam: A Vicious Circle: Counter-Terrorism and Freedom of Religion in Central Asia (2014); Roger Finke & Jaime Harris, Wars and Rumors of Wars: Explaining Religiously Motivated Violence in Religion, Politics, Society, and the State (Jonathan Fox ed., 2012).

[25] OSCE Office for Democratic Institutions and Human Rights, Freedom of Religion or Belief and Security Policy Guidance (2019).