Details of Methodology and Definitions
By Marcela Szymanski, Editor, Religious Freedom in the World 2018
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. Heiner Bielefeldt, former UN Special Rapporteur on Freedom of Religion or Belief (webpages and personal interviews)
- Former Special Rapporteur on Freedom of Religion to the Organization of Security and Cooperation in Europe (OSCE), Prof. Massimo Introvigne (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 G. Kugler and 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:
- US Department of State
- Pew Research Center
- Open Doors/Worldwatch List
- The Transatlantic Academy’s 2015 report “Faith, Freedom and Foreign Policy”
- 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 Today: The Catholic View’
- Jose Luis Bazán’s “Discurso del odio, corrección política y libertad de expresión”
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 two components:
(a) the freedom to have or adopt a religion or belief of one’s choice – or no belief at all, and
(b) 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
The Commission on Human Rights resolution 2005/40 (paragraph 12) and Human Rights Council resolution 6/37 (paragraph 14): “Further emphasizes that, as underlined by the Human Rights Committee, restrictions on the freedom to manifest religion or belief are permitted only if limitations are prescribed by law, are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others, and are applied in a manner that does not vitiate the right to freedom of thought, conscience and religion;”.
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 the clearly distinguishable bias against the victim(s) because of their religion. For a complete list of FORB violations 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 violations to FoRB as a process, where we distinguish three stages. The definitions and what constitutes the passage to the next stage are described below. 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:
a) 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. Opinion leaders at all levels (parents, teachers, journalists, sports stars, politicians, etc.) can promote these messages.
- The aggrieved still have recourse to law. Intolerance is not yet ‘discrimination’. Fundamental rights to non-discrimination still apply.
- In countries where the rule of law is functioning (as in Western democracies), courts may address intolerance issues as hate crimes. In many countries, however, there is no recourse to law regarding intolerance. Hate crimes can follow the “normalisation” of intolerance messages and are often perpetrated by non-State, private actors. 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.” Discrimination and persecution, however, are seldom contemplated in the applicable criminal law, and are perpetrated by both public and private actors.
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.
b) Discrimination: 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. In this case, it is usually the State that becomes the perpetrator violating religious freedom. Blasphemy laws, because they place one belief above all others, appear at this stage. Although discrimination might be legal domestically, it remains illegal according to the UN and the OSCE Charter of Human Rights. Victims can only rely on the international community for help. Instances of discrimination include limitations in access to jobs (including public office), the inability to buy or repair property, to live in a certain neighbourhood or to display symbols of faith.
c) Persecution: This follows discrimination. Persecution and discrimination usually co-exist, the one building on the other. However persecution by, say, a local terrorist group can exist in a country without State-driven discrimination being present. Persecution is an active programme or campaign to exterminate, drive away, or subjugate people based on membership of a religious group. Both State and non-State actors may perpetrate persecution against a given group and that group has no recourse to State law. Persecution has a systematic rather than opportunistic character. Private actors who commit hate crimes against a group are unlikely to be punished. Victims are legally abused, dispossessed and sometimes killed. Persecution is identified and quantifiable through media reports, government and NGO reports or via local associations. Violence frequently accompanies persecution. Minority groups may be subject to murder, expropriation of property, theft, deportation, exile, forced conversion, forced marriage, blasphemy accusations, etc. These acts take place “legally” according to the national laws. In extreme cases “persecution” may turn into genocide.
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’s entities such as ISIS, 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 only to the international community. Acts of ‘Intolerance’ are understood to remain under the full control and responsibility of the State.
We distinguish the following types of perpetrator:
a) The State (whether federal, regional or, municipal)
b) Local non-State actors moved by “religious nationalism” (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 the so-called Islamic State, Al-Qaeda, Al-Shabab, Boko Haram in Cameroon, etc.).
6. Trends over the period covered and Prospects for the next two years:
In our final report we have indicated ‘Deteriorated’, ‘Improved’ or ‘No Change’ in each country in the categories ‘Discrimination’ and ‘Persecution’ but not in the category ‘Intolerance’ because of the sheer volume of incidents that could be interpreted as such. The estimation of prospects is based on the incidents cited 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.