Published in July 2018.
This module is a resource for lecturers
Freedom of religion
International legal framework
Freedom of religion should not be violated by States in the context of counter-terrorism responses; States also have accompanying responsibilities to ensure that fundamental rights and freedoms are not violated by non-States entities such as terrorist actors. Not only is this freedom protected in international and regional treaties, but those policies that limit freedom of religion to counter-terrorism might fuel religion-related terrorism.
With respect to the international legal framework, the starting point is article 18(1) International Covenant on Civil and Political Rights (ICCPR) which provides that: "[e]veryone shall have the right to freedom of thought, conscience and religion". This is the forum internum, i.e. the internal element, whereby all persons have freedom to choose whether and what to believe. Inner convictions cannot be restricted and are protected unconditionally. Freedom of religion includes not only religion, but encompasses also the right to thought, conscience, and belief (General Assembly resolution 36/55, 1981). However, not every belief falls within the scope of freedom of religion (see e.g. General Assembly decision CCPR/C/50/D/570/1993). Of especial note here, the views of terrorist organizations that claim to act on religious precepts to justify engaging in acts of terrorism are outside the scope of freedom of religion.
The second element concerns freedom for the forum externum, i.e. theexternal manifestation of their religion or belief in worship, observance, practice and teaching. In 1993, the Human Rights Committee issued General Comment No. 22 on Article 18, in which it explained the scope of the freedom to manifest religion (Office of the High Commissioner for Human Rights, Human Rights Committee CCPR/C/21/Rev.1/Add.4). This encompasses not only worship, observance, practice and teaching, but also other activities such as ritual and ceremonial acts, the building of places of worship, the display of symbols, the wearing of distinctive clothing or head coverings, the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools, and the freedom to prepare and distribute religious texts or publications. Since 1993, there has been other case law, such as that of the European Court of Human Rights (ECtHR), which has similarly interpreted the scope and boundaries of the right to manifest religion, and when restrictions may be appropriate, through regional treaty lenses ( Lautsi and others v. Italy, 2011; Dahlab v. Switzerland, 2001; Leyla Sahin v. Turkey, 2005; Belcacemi and Oussar v. Belgium, 2017). Though the approach of United Nations and regional human rights bodies are often similar, this is not always the case. For example, for contrasting approaches regarding prohibitions on women wearing the hijab, Islamic headscarf, in public places, contrast Sahin v. Turkey (2005) in which the limitation was found to be justifiable in the interests of the rights and freedoms of others, with Raihon Hudoyberganova v. Uzbekistan. It found on similar facts to Sahin a violation of the right to freedom of religion to have occurred. (Human Rights Committee views CCPR/C/82/D/931/2000).
The protection of freedom of religion when countering terrorism in societies where different religious beliefs co-exist, entails that it may occasionally be necessary to place restrictions on some forms of manifestation of freedom of religion. According to article 18(3) ICCPR: "[f]reedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others." Notably, the internal element of religious freedom, i.e. freedom to adopt a religion or a belief (or, indeed, non-belief), cannot be restricted under article 18(3) ICCPR (para. 8). Any limitations need to be interpreted strictly and may not be imposed for discriminatory purposes or applied in a discriminatory manner (para. 8).
Of especial note in the context of counter-terrorism, limitations of the right to freedom of religion may not be made by States on grounds of national security alone. While article 18(3) permits for some limitations to be made on the grounds stated, it is distinguishable from other qualified rights, such as freedom of opinion (article 19(3) ICCPR), in that it does not permit limitations to be made on grounds of national security, since religious beliefs and their external manifestation should never be considered to pose security threats, per se. Similarly, freedom of religion is the only fundamental freedom from which no derogation is permissible under article 4(2) of ICCPR in situations of war or public emergency. (See further Module 7).
Regional instruments and approaches
The African region
The African Charter on Human and Peoples' Rights 1981 (also known as the Banjul Charter, adopted 1 June 1981, entered into force 21 October 1986) (African Charter) clearly states that "[f]reedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms" (article 8). In interpreting this right, the African Court on Human and Peoples' Rights (ACtHPR) has held that not only the major world religions should be protected, but also the religious rights of indigenous people ( ACommHPR v. Kenya, 2017, para. 167).
The European region
Similarly, the European Court on Human Rights (ECtHR) has interpreted the right broadly to extend to relatively new religions and sincerely held philosophical convictions ( Leela Förderkreis E.V. and others v. Germany, 2008; Knudsen v. Norway, 1985; Eweida and others v. UK, 2013) coming within the scope of article 9(1) guarantees. This states that "[e]veryone 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 worship, teaching, practice and observance."
The Inter-American region
The relevant provision in the American Convention on Human Rights (adopted 22 November 1969 and entered into force 18 July 1978) (American Convention) is article 12(1). This seeks to protect the "freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private". A primary concern of the Inter-American Court on Human Rights (IACtHR) in interpreting this right has been to ensure that any restrictions on the right "[do] not impair or deprive anyone of their right to maintain, change, profess or disseminate their religion or beliefs with total freedom" ( Olmedo Bustos et al. v. Chile, 2001, para. 79).
The Asian region
The ASEAN Charter (adopted 20 November 2007) directly affirms common values and diversity in article 2(2) in the following terms: "ASEAN and its Member States shall act in accordance with the following Principles: (l) respect for the different cultures, languages and religions of the peoples of ASEAN, while emphasising their common values in the spirit of unity in diversity." In addition, the ASEAN Human Rights Declaration (adopted 18 November 2012) guarantees that "every person has the right to freedom of thought, conscience and religion. All forms of intolerance, discrimination and incitement of hatred based on religion and beliefs shall be eliminated". This document allows for discretion in defining the content and scope of this right (Neo, 2017).
The Middle East and Gulf regions
Article 27 of the Arab Charter on Human Rights 2004 (adopted 22 May 2004, entered into force 15 March 2008) (Arab Charter) is that only those restrictions provided by law may limit the practice or manifestation of the right to freedom of thought, conscience and religion. In several Member States of the Arab League, Shari'ah is 'a' or 'the' source of national law and can impose further restrictions, such as in relation to any conduct regarded as being blasphemous of the Islamic religion.
The approach of the Organization of Islamic Cooperation's non-binding Cairo Declaration on Human Rights in Islam (adopted 5 August 1990) (Cairo Declaration) is more detailed than that of the Arab Charter. With respect to equality and the principle of non-discrimination more generally, article 1(a) states that:
All human beings form one family whose members are united by their subordination to Allah and descent from Adam. All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the basis of race, colour, language, belief, sex, religion, political affiliation, social status or other considerations. The true religion is the guarantee for enhancing such dignity along the path to human integrity.
It further continues at article 18(a) to state that "[e]veryone shall have the right to live in security for himself, his religion, his dependents, his honour and his property."
As with the ICCPR, each of the regional human rights instruments also permit for some limitations to be made in relation to the manifestation of religious beliefs in certain circumstances. With respect to article 8 of the Banjul Charter, the African Court has held that certain restrictions may be imposed in the interest of maintaining law and order, so long as any limitations are both necessary and reasonable ( ACommHPR v. Kenya, 2017, para. 167). Similarly, the American Convention permits limitations to be made to the manifestation of religion on public safety, though not national security, grounds. Such manifestations "may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others" (article 12(3)).
The relevant provision of the European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) is article 9(2) which provides for the same limitations as the American Charter, namely that "[f]reedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." In the case of Ivanova v. Bulgaria (2007, para. 79) the Court confirmed that the limitations set out in article 9(2) relate solely to the freedom to manifest one's religion or belief and do not extend to the right to have a religion or belief.