Werner Nicolaas Nel is a senior lecturer in law at the University of Johannesburg, South Africa, and author of the book Grievous religious persecution: A conceptualisation of crimes against humanity of religious persecution
Particular incidences of religious persecution are, because of their scale, severity, and discriminatory motivation, so heinous that they result in severe deprivations of fundamental human rights and are justifiably categorized as crimes against humanity of religious persecution, coined “grievous religious persecution”. In recent years several situations emerged of mass-discriminatory atrocities committed against communities based on their religious beliefs, such as the Yazidis in Iraq, Christian minorities in the Middle East and Nigeria, and Muslim Rohingyas in Myanmar.
Given the inviolability of human dignity, such occurrences have justifiably generated a global moral outcry, demanding that the international community properly address such grave injustices and end impunity. Contrary to the current political climate of resignation and collective cynicism regarding the aspirations of the International Criminal Court (ICC), I argue that international criminal law may proceed in representation of the conscience of humankind by holding criminally accountable, those responsible for religious persecution, and help prevent future occurrences of these crimes.
Unfortunately, the international justice system has remained reluctant to enforce such criminal prosecutions, ultimately due to the definitional instability and legal vagueness of the crime of persecution, which has blunted the enforceability of criminal prosecutions, resulting in impunity. The proposed solution was to propose a legally justifiable, comprehensively formulated, and pragmatically verified conceptualization of “grievous religious persecution”. Prior thereto, certain essential characteristics and misconceptions required clarification.
Vital Clarifications Regarding “Grievous Religious Persecution”
First, it is imperative to remain mindful of the broader scattered spectrum of concurrent contextual utilizations of the term of persecution. In this sense, the notion of persecution may range from a colloquial, theological, sociological, and psychological perspective to a human rights protection context under refugee and international law. Unfortunately, these different contextual uses often result in the careless overuse of the term, reducing its impact when describing an actual situation of persecution, complicating advocacy efforts, and obstructing appropriate counter-active responses and intervention. Therefore, it’s advisable that human rights defenders in this field possess a working knowledge of these different spectrums of the persecution and clearly demarcate the contextual framework within which they intend to use it. In this regard, grievous religious persecution is distinguished from other “subsidiary” manifestations of persecution.
Second, an inherent challenge in the conceptualization is that religion is not the only mode or ground of persecution criminalized, and it must therefore be distinguished. “Religion,” in the international human rights law context, is a “protected ground” of human dignity and identity, and a “religious group” is considered a “protected group.” As such, “religion” is best understood in the context of the freedom of thought, conscience, and religion or belief, which includes the dimensional elements and core values of religious freedom. “Religion” is an umbrella term that is not only limited to traditional notions of faith but may include other deep or profound existential views derived from the inner self, including theistic, non-theistic, polytheistic, or atheistic beliefs. Concerning, an adherent’s “religious identity,” it is derived from the freedom of having and enjoying such a chosen deep existential view, whether individually or in community with others. This expansive interpretation of “religion” and “religious identity” is similarly applicable to the conceptualization of religious persecution. Consequently, religious persecution is not limited to persecution based on religion in its traditional sense but includes persecution based on any deep existential world views.
Third, religious people who are persecuted are not necessarily the victims of religious persecution, unless such victims were primarily targeted “by reason of” their religious identity. The point at issue is whether the victim’s religious identity was the primary factor (not necessarily exclusive factor) that made him or her the discriminate target of persecution. This nexus is essentially a question of “factual causation.” The required nexus is satisfied if the perpetrator, at the time of committing the persecutory acts, specifically targeted the victims based on their religious identity. The primacy of the persecutor’s religious discriminatory mindset is, therefore, the foundational element that contextualizes persecutory acts as religious persecution. Such a religious discriminatory mindset implies a conscious intention to target a person, identifiable group, or collectivity either because they have a particular religious identity (“specific religious discriminatory intention”), or because they lack a certain subjectively accepted religious identity (“negative religious discriminatory intention”). Based on this reasoning, it may be possible to identify “religious identity” as the specific ground of persecution in a given situation, provided that it is possible to acquire proof of a religious discriminatory intent on the part of the persecutor; and that the discriminatory intent is sufficiently tethered to the victim’s identifiable religious identity, or lack thereof, whether based on objective criteria or in the mind of the accused.
Fourth, a person or group’s religious identity is not limited to identity semantics, but also includes a profound commitment to tenets of faith, which may influence an adherent’s way of life and how they relate to, interact with, or perceive others. Regrettably, a religious belief may occasionally be the root cause of manifestations of intolerance, discrimination, and persecution in the name of religion. In this regard, a distinction should be made between persecution that is intentionally directed at a religious identity (religious persecution), and persecution that is motivated by, and committed in the name of, religion or belief (religiously motivated persecution). The distinction is essentially a matter of separating the persecutor’s “religious motive” from his deliberate discriminatory mindset to target victims based on their religious identities.
In terms of religious persecution, the persecutor’s motive is legally irrelevant to either establishing criminal accountability or determining the ground of persecution. The persecutor’s motive for persecutory conduct may be based on multiple motivational triggers, which may not necessarily be anti-religious or motivated by religion. For example, during the Christchurch Mosque shootings in 2019, the attack was discriminately directed as a specific religious identity, viz. Muslim Community in Christchurch, yet the persecutor’s justification, therefore, was not religiously motivated.
Regarding religiously motivated persecution, the persecutor’s narrow-minded interpretation of religious doctrine is the root cause that inspires, motivates, and justifies his persecution of any non-accepting or dissenting identities that threaten his self-righteous aspirations, which is not necessarily or exclusively limited to religious identities. In such instances, the relevant ground of persecution will depend on the discriminate basis upon which the specific victims were chosen, e.g., sexual orientation, ethnicity, gender, etc. Thus, religiously motivated persecution may very well intersect with any of the other grounds of persecution, in which case the religiously motivated persecution is distinguishable from, and does not constitute, religious persecution. Importantly, religiously motivated persecution constitutes a gross transcension and violation of religious freedom and can never be justified as a legitimate manifestation of belief. Also, neither a “religion,” per se, nor the ideas and doctrines that may be imparted from such a religion, are protected against ridicule and criticism. Therefore, religiously motivated reprisals against critical religious thought and speech would likewise constitute a harmful religious manifestation or practice.
Naturally, religious persecution and religiously motivated persecution may often be inseparable, such is the case with certain occurrences of religious extremism. Therefore, where applicable, it is crucial to differentiate between these two categories of persecution.
Fifth, though religious persecution is often understood and equated with violations or abuses of the fundamental right to religious freedom, these two phenomena are not identical. The common characteristic of grievous religious persecution is the severe and deliberate deprivation of any fundamental right “by reason of” the religious identity of the victims. Thus, while religious persecution will always entail an infringement of the right to equality and non-discrimination based on religion, it does not necessarily limit or deprive a believer’s ability to hold or practice their belief, as is the case with violations of religious freedom. The latter may be manifested in various pernicious forms, which may not automatically satisfy the intensity threshold for crimes against humanity.
Conceptualizing “Grievous Religious Persecution”
As mentioned, the complexity and inconsistency of a substantive understanding of persecution is its prime debilitating factor. It is argued that a definitive conceptualization will address this legal obstacle. The proposed conceptualization comprises two parts and functions as a substantive synopsis of the legal preconditions for establishing the ICC’s subject-matter jurisdiction. Also, it may affect the interpretation of persecution in the context of the draft Convention on the Prevention and Punishment of Crimes against Humanity.
The first part involves a systematic analysis of the unique definitional elements that jointly define persecution in terms of Article 7(1)(h) and 7(2)(g) of the Rome Statute. The various elements are divided into three main categories: the actus reus, i.e. the required material elements; the mens rea, i.e. the required mental elements; and the required threshold of severity. The definitional elements of “grievous religious persecution” may be summarized as follows:
1. The actus reus:
- underlying religious persecutory conduct may consist of physical “inhumane acts,” or the substantially serious effect of a course of discriminatory conduct or policies of an “inhumane nature”;
- such persecutory conduct must:
- result in the severe deprivation of a fundamental right, whether separately or cumulatively;
- be objectively linked to any enumerated inhumane act, or any jurisdictionally relevant international crime; and
- be sufficiently linked to the broader attack. A course of religiously discriminatory practices may itself constitute the attack, provided the contextual threshold is satisfied.
2. The mens rea is satisfied if the persecutor committed the persecutory conduct and at the same time:
- was aware of a pattern of religious discriminatory practices (broader attack) and the risk that his conduct may be objectively linked there with;
- deliberately meant to engage in the persecutory conduct; and
- discriminately and consciously targeted victim/s based primarily on their actual or perceived religious identity.
3. The required threshold of severity is satisfied if:
- the religious persecution was carried out in a systematic manner or on a mass scale (or was part of an “attack” of a widespread or systematic nature), directed against a civilian population with an identifiable religious identity, based on an implied or explicit policy of a de facto authority; and
- the persecutory act, or the cumulative effect of a course of religiously discriminate practices, resulted in the severe deprivation (a “gross and blatant denial”) of fundamental rights. “Fundamental rights” are established by either serious atrocities against elementary principles of humanity (fundamental human rights), or crimes of an utmost inhumane character that violate international norms.
The second part of the taxonomy consists of a proposed definition of “grievous religious persecution”, which is:
The deliberate and unjustifiable persecutory conduct based on an explicit or implied policy of conscious and intentional discrimination against a particular civilian group, primarily targeted because of their religious identity, which act or its cumulative effect, resulted in the severe deprivation of the fundamental human rights, is connected to any jurisdictionally relevant inhumane act or core crime, and knowingly forms part of a widespread or systematic attack.
The Conceptualization in Practice—Charging Da’esh with “Grievous Religious Persecution”
To facilitate a pragmatic approach, the proposed conceptualization was applied to a credible and substantiated pattern of offences committed against religious minorities in northern Iraq and Syria by the extremist group Da’esh (ISIS). The conceptualization provided an adequate framework with which to assess grievous religious persecution and produced the following summarized results:
- During an organized “attack” on religious minorities in the areas under its de facto control, Da’esh had committed a pattern of “inhumane-type acts” and “other-type” acts, which constitute the underlying persecutory conduct.
- Considered cumulatively, the religious discriminatory conduct and extensive restrictions on religious freedom and other rights, constitute clear and substantial deprivations of fundamental human rights.
- The persecutory conduct was committed on a massive scale and in a systematic near-identical manner and show a consistent pattern of doctrinally motivated religious discriminatory intent.
- The group’s explicit organizational policy was rigidly and methodically executed, consistently and discriminately targeting specific persons or identifiable civilian groups based primarily (but not necessarily exclusively) on their actual or perceived religious identity, or lack thereof.
- Based on these facts—which are all extremely well documented—is strongly suggestive, if not conclusive proof, of the deliberate commission of “grievous religious persecution”, and may amount to religious genocide in the case of some religious groups.