Published in July 2018.
This module is a resource for lecturers
Fundamental freedoms in situations of armed conflict
As has been discussed throughout the E4J Counter-Terrorism University Module Series, counter-terrorism operations sometimes occur in situations of armed conflict (see further Module 6). Even in this context, fundamental freedoms and human rights cannot be withdrawn, though in certain circumstances they may be limited or derogated from as is provided for within the provisions of the rights themselves as well as under article 4 of International Covenant on Civil and Political Rights (ICCPR). This is especially true of freedom of expression, association and assembly which may similarly be restricted during peacetime operations on national security grounds, unlike freedom of religion.
The fundamental freedom most provided for within situations of armed conflict is that of freedom of religion, reflecting the subjective nature of this right as an internal belief that is non-derogable, though the manifestation of that belief may be restricted. Religious freedom is protected in situations of armed conflict, which is established by State practice "as a norm of customary international law applicable in both international and non-international armed conflicts" (Henckaerts and Doswald-Beck, 2005, p. 450). Notably, according to article 46 of the 1907 Hague Regulations "religious convictions and practice must be respected". More specifically, article 18 of the Regulations provides for a "complete liberty in the exercise of their religion", including attendance at religious services, for prisoners of war so long as they comply with the military authorities' measures of order and police. This fundamental freedom is embedded too within Geneva Convention III, with article 72 requiring that prisoners of war receive "articles of a religious, educational or recreational character which may meet their needs". Similarly, civilian internees retain the right to receive "books and objects of a devotional, educational or recreational character which may meet their needs" (article 108 Geneva Convention IV).
Discrimination based on religious grounds is prohibited under Common article 3 to the Four Geneva Conventions in the following terms: "Persons taking no active part in the hostilities ... shall in all circumstances be treated humanely, without any adverse distinction founded on … religion or faith ..." (see as well article 75 Additional Protocol I; and articles 4-6 Additional Protocol II). As a qualified right, freedom of religion, such as the right to manifest religion, may be subject to restrictions in the same manner as in times of peace, e.g., when it is necessary to protect security or public order. (See ICCPR, article 18(3); African Charter article 8; ECHR article 9(2); American Convention article 12(3); Arab Charter article 30(2)).