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”