In this series we discuss the conception “grievous religious persecution” developed by Werner Nicolaas Nel in his recently published book. Nel points out that “the international justice system has remained reluctant to enforce …criminal prosecutions [of religious persecutions], 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.’”

Employing a broad definition of religion and religious belief and distinguishing religious persecution as a type of persecution targeting primarily the religious identity of victims, Nel offers several materials and mental elements, as well as the required threshold of severity, as definitional components of grievous religious persecution and uses the example of Da’esh to illustrate how his conception will work in practice.

In her response, Michelle Coleman finds the conception of grievous religious persecution “an interesting addition to the landscape of international crimes,”which could be employed by national legislators and international tribunals established in the future to deal with crimes against humanity. However, due to political, jurisdictional, and organizational reasons, Coleman doubts the proposed conception will help the International Criminal Court address more cases on religious prosecution.

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Michelle Coleman is a Lecturer in Law at Middlesex University London

In the 10 March 2021 post “In Pursuit of Criminal Accountability for ‘Grievous Religious Persecution’” Werner Nicolaas Nel argues for a new international crime to provide greater accountability for religious persecution. This new crime builds on the definition of the crime of religious persecution as a crime against humanity under Article 7(1)(h) of the Rome Statute of the International Criminal Court (ICC). In Nel’s formulation, the crime becomes grievous through the addition of a requirement that the persecutory conduct is “based on an explicit or implied policy of conscious and intentional discrimination against a particular civilian group, primarily targeted because of their religious identity.” The post argues that this more specific definition of the crime is necessary in order to provide for prosecution on an international level and to close the impunity gap for those crimes which fall within the definition of grievous religious persecution. This more specific definition may help aid the domestic prosecution of international crimes, particularly when universal jurisdiction is being exercised, or following the creation of any future specialized international courts and tribunals, but is unhelpful at the ICC. The existing formulation of religious persecution found in the Rome Statute is adequate and the perceived lack of prosecution of cases involving religious persecution is more easily attributable to the jurisdictional issues, policy, and resources of the International Criminal Court.

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