Films on FORB

Script: Freedom of Religion or Belief – an introduction

This is the first of a set of 8 presentations looking at what the human right to freedom of
thought, conscience, religion or belief involves, and if and when it may be limited. In this brief
introduction, we’re going to start by thinking about who or what is protected by human rights,
and what rights the freedom of religion or belief gives us.

I’d like to begin by asking you a question! Which religions are protected by the human right to
freedom of religion or belief? Do you think it’s the major world religions? Or is it all religions, including small or unusual religions? Or perhaps it’s all religions and all kinds of beliefs?

Actually, it was a trick question. I asked you which religions are protected. People often assume
that freedom of religion or belief protects religions and beliefs, but actually it doesn’t! Just like
all other human rights, freedom of religion or belief protects people, not religions or beliefs in
themselves.

Freedom of religion or belief protects people who identify with, believe in or practice old
religions, new religions, religions that are traditional in a country and religions that are not
traditional in that country. It also protects people with serious non-religious beliefs about
fundamental questions, like atheists, humanists and pacifists. No matter what country they live
in.

Freedom of religion or belief even protects people who don’t care about religion or belief at all.
In other words, freedom of religion or belief protects everyone! So what protections or rights do
we have? To find that out we need to look at international human rights declarations and
conventions. The two most important are:

Article 18 of the United Nations Universal Declaration of Human Rights and
Article 18 of the United Nations International Covenant on Civil and Political Rights
While UN declarations state political intentions, UN covenants and conventions are legally
binding. Let’s look at the text of the Covenant on Civil and Political Rights.

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice, and freedom, either
individually or in community with others and in public or private, to manifest his religion or
belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a
religion or belief of his choice.

3. Freedom 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.

4. The States Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to ensure the religious and moral education of
their children in conformity with their own convictions.

So what does it mean in practice for the people protected? What rights do we have? I’d like to
introduce seven topics that highlight the rights provided by international law in relation to
religion and belief:

The first two form the heart of the right to freedom of religion or belief:
• The freedom to have, choose, change or leave a religion or belief and
• the freedom to practice or manifest a religion or belief.
• On top of these we have the right to protection from coercion and
• from discrimination in matters of religion or belief,
• rights for parents and for children concerning religion and belief,
• and the right to conscientious objection.

Another key element of freedom of religion or belief is the rules about if and when the rights
provided may be limited.

On the website you’ll find a film on each of these topics, with an in depth look at what the right
means in practice.

Copyright: SMC 2018

Script: Freedom of Religion or Belief: the right to have or change your religion or beliefs

TThe first core dimension of freedom of religion or belief is the right to freely have, keep, change
or leave your religion or belief. This is about your personal convictions, and is known as the
internal dimension of freedom of religion or belief. The right to have or change your religion or
beliefs is an absolute right, which means that according to international law, this right may
never be limited. Whether you are a Christian, Muslim, Bahai, Yezidi or atheist, whether you live
in Singapore, Sweden or Sudan, whether there is peace or war, regardless of what religious or
political leaders say – you and every other person have the right to keep and cherish your beliefs,
or to change them, or be a non-believer.

Of course many people are denied this absolute right and punished or attacked for their religion
or beliefs, by governments, by family members or by groups in their community.

Some governments ban particular religions or beliefs. Falun gong is a form of Buddhist belief and
practice that is banned in China. Falun gong practitioners have suffered imprisonment, torture,
forced labour and re-education aimed at forcing them to abandon their beliefs.

In Eritrea, there are only four state-recognised religions and people who belong to unrecognised religions, such as Pentecostal Christians and Jehovah’s Witnesses, have been harshly
punished in different ways.

A more subtle example of violations of the right to have a religion or belief is hate crimes where
victims of violence are targeted because of their religious identity or beliefs. They are attacked
because they have a particular religion or belief.

In France, hate crimes such as assault, harassment or criminal damage towards Muslims rose by
250% in 2015, with 336 incidents recorded. And the level of hate crimes towards the Jewish
community remained high with 715 hate crimes reported.

In parts of rural Mexico, protestant Christians have been subject to violence or driven from their
land by community leaders who wish to preserve traditional and Catholic Christian religiosity.

In many countries, religious identity, national identity and the identity of the state are closely
intertwined. In such circumstances, religious minorities and people who leave the majority
religion, including atheists, may be seen as disloyal to the nation, or even as a threat to national
security.

The absolute right to leave a religion or belief is often disregarded.

Indonesia has freedom of religion laws, although these laws only protect people with certain
religions: Islam, Catholic and Protestant Christianity, Buddhism, Confucianism and Hinduism.
Atheism is not protected. At the age of 30, Alex Aan who has a Muslim background served a 2½
year jail sentence and faced a fine of $11,000 US dollars for writing “God doesn’t exist”, and
starting an atheist page on Facebook.

Aan was charged with having disseminated information aimed at religious hatred or hostility,
having spread a blasphemous message on the internet, and having called for others to embrace
atheism. Aan was beaten by angry mobs and rejected by his community, despite having posted a
public apology on his Facebook page.

In Iran, converts to Christianity from Islam can face harsh punishment, particularly if they are
involved in unregistered house churches. In July 2017, four converts were sentenced to 10 years
imprisonment charged with “acting against national security”. Three of them have previously
been sentenced to 80 lashes for drinking communion wine, as the government still regards them
as Muslims, and it is illegal for Muslims in Iran to drink alcohol.

Often political and religious leaders use their interpretation of sacred texts or religious law
traditions to justify bans on and punishments for leaving the majority religion, or for belonging
to certain groups. Punishments can include the death penalty, imprisonment, loss of
employment or the annulment of marriage and loss of child custody. A number of countries with
Muslim majorities including Saudi Arabia and Pakistan have such legal limitations on the right to
leave Islam. However this is far from inevitable. For example, in Sierra Leone Muslims form
around 70% of the population and Christians 20%, and whilst religion is very public, it’s not
politicized and conversions in both directions are commonplace.

These kinds of problems are not limited to countries with Muslim majorities. In parts of the
Central African Republic, so called Anti-Balaka militias have used death threats to force
members of the Muslim minority to become Christians. And several states in India have
legislation restricting the right to change religion, for example requiring people who convert to
seek permission from government agencies.

And governments aren’t the only ones who violate the right. In India there have also been
serious outbreaks of violence in which Hindu nationalist groups have attacked Christian and
Muslim communities, at times including conversions under the threat of violence. In some cases,
people displaced by the violence have been required to convert before being allowed to return
to their homes.

Neither are religious people the only ones to face problems. People who criticize religious ideas,
or the relationship between religion and the state, can face great danger. In recent years,
several bloggers in Bangladesh have been murdered by extremist groups for criticizing religious
ideas and practices, and the state. Sadly, the Bangladeshi government’s attempts to stop these
violent extremist groups have not yet succeeded. Some governments fail to condemn attacks
upon people who criticize religious ideas. This silence sends a message that violence is justified
and acceptable.

The freedom to change religion or belief is very controversial at the international level. In fact,
each time the member nations of the United Nations have agreed a new convention or
declaration the right to change religion has been expressed more weakly.

But even if the language gets weaker, the UN human rights committee, whose job is to advise
countries on how to interpret the covenant on civil and political rights, has stated that “the
freedom to ‘have or to adopt’ a religion or belief necessarily entails the freedom to choose a
religion or belief, including the right to replace one’s current religion or belief with another or to
adopt atheistic views, as well as the right to retain one’s religion or belief.”

To summarise – the right to have or change your religion or belief is absolute. It may not be
limited under any circumstances. None the less, some governments limit the right and there are
many cases in which families or groups in society punish people in different ways for having or
changing their religion or beliefs.

You can find more information about the right to have or to change religion or belief, including
texts of human rights documents that refer to it, in the training materials on the website.

Copyright: SMC 2018

Script: The contents of Freedom of Religion or Belief – the right to manifest religion and beliefs

The second core element of freedom of religion or belief is the freedom to manifest your beliefs in teaching, practice, worship and observance. This is known as the external dimension of freedom of religion or belief. Unlike the right to have or change religion or belief, the right to manifest is not absolute. In some circumstances the right may be limited.

To manifest means to express faith or beliefs in words and actions. International human rights law gives people the right to do that publicly or privately, alone or together with others.

You are entitled to pray privately and to express your religion or belief as part of a community, with collective worship and traditions.

And that community has rights too – not rights over their members, but rights in relation to the state. One of the most important of these is that the state has to ensure that religious and belief communities that want to gain a legal identity can, so that they can hold bank accounts, employ
people, own buildings and run institutions.

There are lots of different ways for individuals and groups to practice or manifest a religion or belief, and UN experts have provided plenty of examples of activities that are protected:

• To come together for worship, celebrate festivals and observe days of rest.
• Wear religious clothing and follow special diets.
• To have places of worship, cemeteries and to display religious symbols.
• To play a role in society, for example by forming charitable organisations.
• To talk about and teach religion or belief, and train or appoint leaders.
• To write, publish and spread literature about your beliefs
• and communicate about faith issues at the national and international levels.
• You may also collect voluntary donations.

At this point you might be saying great – these are just the kind of rights I want for my community!

You might also be getting worried! What about groups who repress and control their members, or promote hatred or violence towards others? Are they free to spread and practice their beliefs?

I’d like to give two responses to this:

Article 5 of the International Covenant on Civil and Political rights bans the use of one right to destroy other rights. So freedom of religion or belief does not give the state, any person or group permission to repress people, incite violence or carry out violent acts.

Of course a lot of governments and groups do use force or repression. But freedom of religion or belief doesn’t give them the right to do so. On the contrary it exists to protect those affected by repression and violence.

Secondly, although the right to have and to choose your beliefs can’t be limited, the right to manifest or practice a religion or belief can. But Article 18 specifies that this may only be done when four rules are followed:

The limitation has to be provided for in law, necessary to protect other people, non-discriminatory, and proportionate to the problem it seeks to address.

These rules are really important. Without them, governments could limit any and every group or practice that they don’t happen to like.

Limitations are meant to be a last resort, not a tool for state control. Sadly many governments ignore these rules and there are countless examples of state violations of the right to manifest religion.

Restrictive laws on registration are a major problem. Some governments require registration and make the right to practice religion or belief conditional on having registration. This violates international law. Registration should never be a precondition for the right to manifest.
Registration should exist to provide legal personality for communities that want it.

Often states that ban unregistered religious manifestation also have restrictive laws that limit the ability of groups to register. Unregistered religious activity is, for example, banned in Kazakhstan and numerous groups have not been granted registration. It’s also illegal to talk about religion to someone outside your own religious community and all religious literature has to be censored before use. This affects all religious communities.

Governments restrict religious practice in lots of different ways. The Vietnamese government uses check points to block Hoa Hao Buddhists from accessing their only pagoda. In Saudi Arabia, public non-Muslim worship is forbidden and some migrant workers been arrested and deported in connection with raids on gatherings for worship. And in parts of China and Indonesia, church buildings have been demolished by the authorities.

Thousands of publications are banned under Russian laws on extremism, including many that peacefully present religious beliefs. It’s almost impossible to check if a text is banned but possession can result in fines, imprisonment or the banning of religious communities. Severe restrictions also apply to which religious beliefs can be shared, where and by whom.

In France some town mayors tried to ban the burkini, a swimming costume that covers the whole body except the face, on the basis of public order. That law was struck down by the highest administrative court, but a ban on wearing clothing that covers your face is still in place. And in some European countries, Halal and Kosher slaughter are banned.

The right to manifest religion is also limited by the actions of people and groups in society. In a survey of over 5000 Jews in 9 European countries, 22% said they avoid wearing religious clothing like the kippa because of fears for their own security. And in several countries, Jewish cemeteries have been desecrated.

In countries like Egypt, Pakistan and parts of Nigeria, people are afraid to attend places of worship for fear of attacks by terror groups committing violence in the name of Islam. While in parts of the Central African Republic, collective Friday prayers are impossible due to the risk of attacks from militias that target Muslims.

To sum up, the freedom to manifest religion or belief protects the rights of both individuals and groups to express their faith or beliefs in words and actions. This can be done both privately and publicly. Human rights documents give lots of examples of the types of practices protected, and one of the most important protections for groups is the right to a legal identity.

The right to manifest religion or belief may be limited, but only if a strict set of rules is followed, showing that the limitation is legal, necessary to protect other people, non-discriminatory and proportionate to the problem it tackles.

Sadly, many governments around the world do not follow these rules. The right to manifest religion or belief is violated both by governments and by groups in society.

You can find more information about the right to manifest religion or belief, including texts of human rights documents that refer to it, in the training materials on the website.

Copyright: SMC 2018

Script: The contents of Freedom of Religion or Belief – protection from coercion

An important dimension of Freedom of Religion or Belief is the right to protection from
coercion. Coercion is when someone uses force or intimidation to make you do something.

A core dimension of freedom of religion or belief is that everyone has the right to have or to change their religion or belief. Another way of putting this is that religion or belief and their expression are voluntary.

The right to protection from coercion elaborates on this. No-one, not the state, religious leaders or any other person or group, has the right to force their beliefs or practices on others. Neither to make them have, keep nor change their religion or belief.

International Covenant on Civil and Political Rights, Article 18 paragraph 2
“No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”

This dimension not only bars states from coercing people, it also gives states a duty to protect people from threats or violence that they face from other people or groups in society.

None the less, around the world we see examples of coercion in the form of threats, violence or punishments such as fines or imprisonment. Coercion can also be more subtle, like offering jobs in exchange for conversion, or stopping people’s access to health and education if they leave or refuse to adopt a religion or belief.

Sometimes the state is involved in coercion, either officially through legislation, or via the actions of officials at the local level.

The Baha’i community is the largest non-Muslim religious minority in Iran. Since the 1979 revolution, Baha’is have been systematically persecuted as a matter of government policy in an attempt to force them to convert to Islam. During the 10 years following the revolution, over 200 Baha’is were killed, hundreds were tortured or imprisoned, and tens of thousands lost jobs, access to education and other rights, solely because of their religious belief.

As of December 2017, there were 97 Baha’i prisoners of conscience in Iran, including six
national-level Baha’i leaders.

This example illustrates the connection between discrimination and coercion. Baha’is in Iran are banned from going to university and from employment in the civil service. This discriminatory law is coercive. When a student or employee is discovered to be a Baha’i they face the choice between converting to Islam, and losing their position.

Sometimes violent nationalist or extremist groups coerce people to change their religion or beliefs. The so called Islamic state, Daesh forced both Yezidis and Christians to convert, and murdered people who refuse. While in India, forced conversions to Hinduism have been documented in connection with communal violence involving Hindu nationalists. In Myanmar, there are documented cases of the army forcing Christians to recant their faith and convert to Buddhism at gun point. And in parts of the Central African Republic, Muslims have also been threatened with being shot unless they convert to Christianity.

Although the ban on coercion formally applies to people’s ability to have, adopt or change their religion or belief, many people also experience both state and societal coercion in relation to the practice of religion. An issue that illustrates this coercion is women’s clothing. Some countries legally require women to wear religious clothing, while others ban women from doing so. And women can face harassment from people outside their faith community if they wear religious clothing and from people within their own faith community if they do not.

Lots of different people can be affected by coercion. In many countries, people whose religious ideas or practices differ from state ideology or from the social norm are affected by coercion. Minorities, atheists, converts or people with religions considered ‘foreign’ to the context are often affected. And within religious groups, people considered to be heretics, blasphemers or considered to be failing to practice their religion properly can be affected by coercion to change their beliefs and practices, coercion that comes from the state, their family or community.

To sum up, coercion can involve threats, violence, discrimination or punishments such as fines or imprisonment, and can come from the state, or from people and groups in the community. In saying that no-one shall be subject to coercion, international human rights law not only bars states from coercing people, it also gives states a duty to protect people by acting in an efficient way to prevent and stop coercion in society.

You can find more information about protection from coercion, including texts of human rights
documents that refer to it, in the training materials on the website.

Copyright: SMC 2018

Script: The contents of Freedom of Religion or Belief – protection from discrimination

A right that is very closely related to freedom of religion or belief is the right to protection from discrimination. Discrimination is when some people are not treated as well as others because of who they are.

One of the main rules within international human rights law is that states are not allowed to discriminate on any grounds, including those of religion or belief. Article 2 in the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights describe this right.

ICCPR, Article 2, paragraph 1
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

So discrimination on the basis of religion or belief is barred. The ban on discrimination mirrors the ban on coercion. The state is not only required to refrain from discriminating in its own actions, it is also required to act in an efficient way to prevent and stop discrimination in society.

None the less, discrimination is probably the most commonly experienced violation of freedom of religion or belief and affects every religious and belief group.

In Sweden, researchers have found that Jews have a 26% lower chance of being offered a job, and Muslims have a 30% lower chance. The question of if and when it’s discriminatory for employers to ban staff from wearing religious symbols such as a cross or hijab in the workplace is also important, and has been brought to European courts and the UN Human Rights Committee numerous times.

Discrimination can take lots of forms. Sometimes it takes the form of state favouritism of one religion over others, for example discrimination in the allocation of state funding to different groups. Sometimes discrimination is more severe, resulting in a denial of rights, for example when some groups are denied the right to legal identity or to build places of worship. State discrimination on the basis of religion or belief doesn’t only affect religious activities. It can affect every area of life including marriage, child custody or access to employment, housing, welfare services or justice.

In many countries a person’s religion is stated on their ID card. This makes minorities vulnerable
to discrimination every time they have to show their ID card.

Hindus in some parts of Indonesia have to travel a long way to register marriages or births because local officials refuse to register them. And Christians have problems getting permission to build or repair churches. National courts have repeatedly ruled in favour of Christians, but local officials ignore the rulings, sometimes because they are afraid of violent extremist groups.

In Pakistan, discriminatory legislation makes it a criminal act for Ahmadis to preach, propagate, or disseminate materials on their faith and they have lost the right to vote.

Human rights organisations in Kenya say that the fight against terrorism in the country has resulted in the widespread targeting and collective punishment of Muslims by security officers, with reports of arbitrary arrests, torture, killings and disappearances, a charge the government denies.

In twenty two villages across Myanmar, local Buddhist monks have declared their villages to be Muslim free zones, putting up signposts that bar Muslims from entering or spending the night in the village, bar residents from marrying Muslims and spread hate propaganda. The authorities have done nothing to stop this.

Often people are discriminated against for more than one reason, for example on the basis of both religion, and ethnicity, gender or class. In human rights language, this is called intersectional discrimination. This makes some groups even more vulnerable to violations of freedom of religion or belief, for example women, indigenous peoples, ethnic minorities, the LGBT community, migrants and refugees.

Let’s look at an example of intersectional discrimination from India.

The Hindu caste system is a type of fixed class system, that divides people into higher and lower castes and casteless groups such as Dalits. Dalits are often the poorest of the poor, facing massive social and economic discrimination. Although it has its roots in Hinduism, the caste system permeates the whole of Indian society, and people of all faiths are regarded as belonging to particular castes. For example, many Indian Christians and Muslims are of Dalit origins.

When India gained independence the government banned the caste system and tried to counter caste discrimination by introducing a system of affirmative action. This system reserves a certain quota of government jobs and places at state owned higher education institutions for Dalits and provides certain welfare benefits. So far so good one might think. However, these benefits are only granted to Hindu Dalits and to Sikhs and Buddhists of Dalit origin. Christian and Muslims of Dalit origin are denied these benefits.

Christian and Muslim Dalits face discrimination in the community both due to their caste and their minority religion. They are also discriminated against by the state on the basis of their religion, being excluded from affirmative action to counter caste discrimination. This impacts upon economic and social development for Christian and Muslim Dalits.

To sum up: States are not allowed to discriminate against people on the basis of religion or belief. They also have a duty to protect people by acting in an efficient way to prevent and stop discrimination in society.

Discrimination can take many forms and affect every area of life. Often, people face
discrimination for multiple, inter-sectional reasons, including their religion or belief.

You can find more information about protection from discrimination, including texts of human
rights documents that refer to it, in the training materials on the website.

Copyright: SMC 2018

Script: The contents of Freedom of Religion or Belief – Parents and children

Article 18 of the International Covenant on Civil and Political Rights provides specific rights for parents and for children in relation to freedom of religion or belief.

Parents and legal guardians have the right to give their children religious and moral education, and to organise family life in accordance with their beliefs.

But it’s not just adults that have human rights! Children have the right to freedom of religion or belief as well – for example the right to be part of the life of a religious or belief community and participate in religious festivals or worship.

Children also have the right to access religious education in accordance with the wishes of their parents or guardians. They may not be forced to participate in confessional religious instruction against their parents’ wishes, and as children mature their own wishes should increasingly be
taken into account.

There are lots of examples of these rights being violated. In the countries of Central Asia, part of the legacy of the soviet past is that governments want to control every aspect of society. For example, in Tajikistan under-18s are legally barred from participating in religious worship or events, with the exception of funerals. And in other Central Asian states, governments have interrogated and harassed school-age children who do attend mosques and Christian churches, or who take part in activities like summer camps, as well as subjecting children to public denunciations in schools.

So some governments prevent children from practicing religion. Some other governments force children from minorities to participate in religious instruction that aims to convert them to the majority religion. This happens despite the fact that states have a duty to ensure that children can get exemptions to confessional religious instruction not just in theory, but in practice.

In Turkey, the Religious culture and ethics curriculum and textbooks still include confessional religious instruction, despite some reforms. Jewish and Christian students are theoretically exempt, but in practice these exemptions can be difficult or impossible to claim. And children of Alevi, Baha’i, atheist or agnostic families, or students who have these beliefs of their own accord, are forced to take the classes. In all of these examples, both parents and children’s rights are being violated.

Before the Convention on the Rights of the Child, (CRC) was adopted, international human rights law didn’t really discuss the rights of the child specifically. The convention changed that, emphasising children as rights holders and in Article 14 as having the right to freedom of religionor belief themselves.

Article 14 presents children as both independent and vulnerable, needing parental help and guidance as they exercise their right to freedom of religion or belief, especially in relation to the state.

The convention states that the principle that should guide all matters is the best interests of the child. It also emphasises children’s right to express their opinions on all matters affecting them. None the less, it is often grownups, in particular parents, who come to a conclusion about what these best interests are, and speak up for them.

Sometimes, however, the interests of children and parents can be different. In these cases, children’s right to freedom of religion or belief has to be balanced against the same right of parents.

For example, at what age does a child have the right to make their own decisions about religious practice or belief? About whether they want to go to church for example?

According to the Convention on the Rights of the Child, parental direction in matters of religion or belief is to be given in a manner consistent with the child’s evolving capacities. In other words, the older and more mature a child becomes the greater freedom they should have.

The international legal norm for adulthood lies at 18, but the question of how much independence and mental maturity is ascribed to children as they progress through childhood varies greatly between cultures and contexts. Different countries have different laws and regulations. In Sweden, for example, children from the age of 12 can’t be made a member of a religious community against their will.

The Convention on the Rights of the Child does establish a universal norm regarding how parents bring children up – the practice of a religion or belief may not harm the physical or mental health or development of a child.

Cases concerning parents’ rights to freedom of religion or belief versus the rights of the child seldom come to court. However, the right of Jehovah’s witnesses to stop their children from receiving blood transfusions is one example where courts have ruled against parents’ rights to freedom of religion or belief, and in favour of the child’s right to life.

To sum up, in this film we have looked at the rights of parents and children.

Children have the right to freedom of religion or belief, and parents have the right to bring their children up in accordance with their beliefs. This should be done in a manner consistent with the child’s growing maturity, and the practice of a religion or belief may not harm the physical or mental health or development of a child. Examples of violations include states that forbid children from practicing religion, and states that force majority religious instruction on minority children.

You can find more information about the rights of parents and children in relation to freedom of religion or belief, including texts of human rights documents that refer to it, in the training materials on the website.

Copyright: SMC 2018

Script: The contents of Freedom of Religion or Belief – conscientious objection

Freedom of thought and conscience are protected by article 18 of the Covenant on Civil and Political Rights, alongside religion and belief, so the right to conscientious objection is part of freedom of religion or belief.

Conscientious objection means refusing to do something you are required to do, because doing it would violate your conscience or religious belief.

Examples of things people claim a right to refuse to do include compulsory military service, taking oaths, receiving blood transfusions or participating in some medical procedures. The only specific form of conscientious objection mentioned in UN documents is the right to refuse military service. And it’s not mentioned either in legally binding UN conventions, or in the Universal Declaration of Human Rights. Instead, it’s mentioned in General Comment 22 of the United Nations Human Rights Committee.

This is a document written by UN human rights experts which explains how states should interpret article 18 of the International Covenant on Civil and Political Rights. This committee concludes that article 18 supports a right to conscientious objection to military service, if being
required to kill seriously conflicts with your freedom of conscience, and the right to manifest your religion or belief.

Many countries recognize this right, and offer alternative national service systems and exemptions. But there are still a number of states that imprison those who refuse to do military service because of their religious or pacifist beliefs. Jehovah’s Witnesses are the group most
heavily affected by this. For example, in South Korea 389 Jehovah’s witnesses were serving prison sentences for conscientious objection in December 2016.

According to UN Human Rights bodies, alternative non-military service arrangements should be accessible to all conscientious objectors without discrimination, and everyone affected by military service should have access to information about the right to conscientious objection and how to claim it. Conscripts and volunteers should be able to object both before and during military service.

In addition to conscientious objection to military service, other forms of conscientious objection are often recognised at the national level. This mainly relates to health care, for example midwifes and doctors who refuse to perform abortions. In some countries, conscientious objection issues have been raised in relation to same sex marriages. Often difficult questions about rights in conflict come up, for example if the right to conscientious objection comes into conflict with women’s rights or anti-discrimination legislation.

There is no clear international legal norm for these kinds of conscientious objection yet. In fact the issue is very controversial.

Here are the three arguments you’re most likely to meet:

Some people argue that conscientious objection is part of the absolute right to have your religion or beliefs, that may never be limited. They argue that following your conscience should not result in any punishment or cost. After all, it’s impossible to be a devout pacifist and a soldier, so forcing pacifists to be soldiers violates their internal, absolute right to have a religion or belief.

Some others agree that it’s an absolute right, but think circumstances matter. They argue that conscripts, prisoners and others who have no choice about their situation should never be forced to violate their conscience. But that people who voluntarily apply for a job and are free to leave it can’t automatically expect their employer to accommodate their conscience. In other words, choosing to act in accordance with your conscience may involve a cost.

And others argue that conscientious objection is an act, and that is therefore a manifestation of your conscience, religion or beliefs. Manifestations may be limited, but only where necessary to
protect the rights and freedoms of others, public health, order or morals. In relation to conscientious objection to military service, it’s important to note that national security is not a legitimate ground for limiting freedom of religion or belief.

Legal experts disagree on which of these positions is correct.

To sum up, in this film we have looked at conscientious objection. Conscientious objection is the right to refuse to do something you would normally be expected to do. The right to conscientious objection to military service is protected in international human rights law. Many
countries recognize this right, but some imprison conscientious objectors. Many states also recognise other forms of conscientious objection at the national level. However, these rights are controversial and international law on the topic is not fully developed.

You can find more information about the right to conscientious objection, including texts of
human rights documents that refer to it, in the training materials on the website.

Copyright: SMC 2018

Script: Limitations to freedom of religion or belief  

You’ll know from watching the news and perhaps from your our own life experience that many governments impose limits on freedom of religion or belief. They argue that they need to limit religious expressions for one reason or another. So how do we know when limitations are justifiable and permissible and when they’re not?

International human rights law says that the right to have, choose, change or leave a religion or belief is absolute – it may never be limited. The right to manifest a religion or belief may on the other hand be restricted but only when four rules are followed.

Any limitation needs to be provided for in law.

The point of this is to stop the state, police and the courts from acting unpredictably or inconsistently.

The limitation has to be necessary to protect public safety, public order, health or morals, or the rights and freedoms of others.

This is important. Imposing a limitation because it’s necessary to protect other people is very different from choosing limitations based on what will win votes.

Limitations may not be discriminatory,

And any limitation must be proportionate to the problem caused by the manifestation.

These rules are really important. Without them, governments could limit any and every group or practice that they don’t happen to like. Limitations are meant to be a last resort, not a tool for state control.

Let’s use a made up example to illustrate what the rules mean.

Imagine a town where there are five different religious groups. All of them have places of worship and they all make a certain amount of noise, which isn’t appreciated by the neighbours! But the police only receive complaints about one small, unpopular group…

High levels of noise are bad for health and public health is a legitimate ground for limitations. So what should the local authority do? What kinds of regulations are necessary, non-discriminatory and proportionate to protect public health?

In this case, a general law regulating the volume permitted for all public meetings would be appropriate. A law that applies equally to all religious groups and to others. If any group exceeds the volume, it would be proportionate to require them to turn it down or face a fine. It would not be proportionate to demand complete silence or to ban them from meeting all together!

And the police would have to enforce the law equally, even if they only receive complaints about unpopular groups.

That’s a fairly minor, simple example.

When we look at major violations of freedom of religion or belief, it’s usually easy to see that these rules are being ignored, because the restrictions are so obviously unnecessary, discriminatory or disproportionate.

Some countries ban all religious activities that take place outside buildings registered for the purpose. This makes it illegal to say a prayer of thanks with guests before you eat dinner in your home! This limitation is obviously not legitimate!

But there are lots of controversial cases. Is it ok for a town mayor in France to ban burkinis – swimming costumes that cover everything but the face and feet? Or for authorities in parts of India to limit the right to tell others about your beliefs?

In this presentation we’re going to look at the seven questions courts should ask to determine if limitations are legitimate. Hopefully this’ll help you assess limitations that you encounter.

When a state places restrictions, the first question to ask is if the limitation interferes with the absolute right to have or adopt a religion or belief, or with the right to manifest it.  

If the absolute right is being limited, then the state’s actions are not legitimate. But if a manifestation is being limited, we move on to our next question.

Is the behaviour being limited a manifestation of religion or belief, or just a behaviour?  

The things we do are often guided by our beliefs. But not everything we do is a protected manifestation of religion or belief. When someone complains that their right to manifest has been limited, courts start by deciding if the behaviour concerned is a manifestation of religious or belief. They do this by looking at the connection between the behaviour and the belief to see if they are intimately linked.

Sometimes this is easy. Going to church is intimately linked to Christianity, and fasting is intimately linked to Islam.

But it’s not always simple. For one Christian wearing a cross isn’t important; for another, it’s a deep expression of religious identity. And Muslim women have different beliefs about head coverings.

It’s not the role of the courts to decide which beliefs are correct. In deciding what counts as a religious manifestation, courts face the risk of making judgements on doctrine that give preference to some theological interpretations over others. Human rights are held by individuals, so courts increasingly look at the beliefs of the person concerned instead of institutional doctrines, and reason that if that person considers an action to be a religious manifestation, then for them it is!

Once we’ve established that a protected manifestation is being limited, we need to check whether the limitation is provided for in law.  Is there written law, case law, or customary law that regulates the limitation? Or is it being imposed by officials without any legal basis? If there’s no legal basis, the limitation is not legitimate.

The next step is to assess whether the limitation is necessary to protect a legitimate ground. To answer this, we first need to check if there is a direct link between the practices being limited and one of the legitimate grounds and secondly check if the limitation is necessary? Let’s look at each of these questions in turn.

Under international law, the only legitimate grounds to limit freedom of religion or belief are the protection of public safety, public order, health or morals or the rights and freedoms of others.

So how does the behaviour being limited threaten these grounds? And is there evidence of this?

The state has to demonstrate a direct link between the practices being limited and one of these legitimate grounds.

The Hindu caste system divides people into higher and lower castes and casteless groups. Casteless groups face massive discrimination and social and economic disadvantage. Some temples used to bar casteless Hindus from entering. India abolished the caste system in 1949, and temples are no longer allowed to refuse entry to casteless Hindus. This limitation passes the test – there is a clear, direct link between preventing caste discrimination and protecting the rights and freedoms of others.

But not all limitations have such a clear link and sometimes governments misrepresent or misuse the legitimate grounds.

Limitations to freedom of religion or belief often relate to public order. Public order laws regulate lots of things including threats, assault, incitement to violence and sometimes blasphemy.

The freedom to manifest religion or belief necessarily involves the right to say what you believe to be true. Obviously beliefs can be expressed peacefully or in ways that incite violence. Sadly some people are so offended by the peaceful expression of beliefs other than their own that they respond with violence.

Some states ban the peaceful expression of certain beliefs, arguing that they have legitimate public order grounds to do so because of the risk of mob violence.  Indonesia bans the public expression of Ahmadi or atheist beliefs on this basis. As a result, victims of violence are sometimes charged with blasphemy or incitement, instead of perpetrators being charged with assault.

Laws like this don’t reduce violence. Instead, they reinforce the idea that people who have the ‘wrong’ beliefs should be punished.

Another tricky ground to apply is public morals. Does everyone have the same morals and whose morals are ‘public’? UN human rights experts say that the definition of public morals must come from “many social, philosophical and religious traditions”. In other words, you can’t base limitations on the morals of majority alone.

It might surprise you that national security is not a legitimate ground for limiting freedom of religion or belief.

Some governments demonize groups, especially groups that share the religion of an enemy country, calling them a threat to national security. The convention writers agreed that that public health, safety and order give enough scope for limitation and that adding national security would risk making freedom of religion or belief inapplicable when it’s most needed.

So we’ve established that the state has to demonstrate a direct link, showing how the practices limited threaten a legitimate ground. We’ve also seen that it’s important to check that the legitimate grounds are being interpreted and applied correctly.
 
Let’s move on to the second part of our question – is the limitation necessary? Not desirable from a political or majority perspective but necessary.

Let’s say that the government has shown that there’s a direct link between the limitation they propose and the protection of the rights and freedoms of others.

Is the threat serious enough to motivate a limitation?  
Will the limitation proposed be effective in protecting other people’s rights?  
And are there other ways of solving the problem without limiting rights?  

If the problem isn’t serious enough, if the limitation proposed won’t contribute to solving it or if there are other ways to solve it without limiting rights, then the limitation is not necessary.

The government of China claims to have health and safety concerns about overcrowded Buddhist training centers. Health and safety are legitimate grounds.  One solution would be to enable centers to renovate and expand. This solution would not limit rights. Instead, the government demolished whole areas and forcibly removed 1000 nuns. This was not necessary.

Of course, some limitations are necessary. The United Nations has clearly stated that harmful traditional practices should be forbidden, such as some initiation rituals and female genital mutilation.

Of course, many cases aren’t so clear. But the burden of proving the limitation is necessary is meant to lie on the state.

Once we’ve established that the state has legitimate grounds and the limitation is necessary, we need to check if the limitation is discriminatory.  

You might think that it’s easy to see if laws, policies or practices are discriminatory. And if they explicitly apply to some people and not others, it is. This is called direct discrimination and is forbidden.

But sometimes laws that apply to everyone have a major impact on some people and no impact on others. This is called indirect discrimination.

Let’s return to our imaginary town and the noisy places of worship. The council has introduced a law limiting the volume of public events and religious communities have adjusted their loud speakers accordingly. But the church bells are too loud and you can’t reduce their volume. The church has to give up a traditional practice, while other communities had no problems.

This is indirect discrimination.

There are lots of examples of general laws resulting in indirect discrimination:

Many countries ban the carrying of knives in public places. This has no effect on religious and belief groups, with the exception of Sikhs. Sikh men are required to wear a Kirpan, a ceremonial knife, under their shirt. So the law limits the ability of Sikh men to fulfil their religious obligations.

In some countries planning regulations require new buildings to be approved by the owners of neighbouring properties. But neighbours can be prejudiced, so traditional groups find it easier to get planning permission than smaller, non-traditional groups.

Policies and practices can also create problems. If a university always holds entrance exams on Saturdays, then Adventists and observant Jews are disadvantaged. Often workers from minority religious groups are required to take holiday in connection with majority religious festivals instead of being allowed to take their leave in connection with their own festivals.

Direct discrimination is always banned. But the courts should treat indirect discrimination as a practical problem to be solved wherever reasonably possible. And often simple solutions can be found. In our imaginary town, the council could grant an exception allowing the church bells to ring on Sundays and religious festivals.

In Sweden, university entrance exams used to be held only on Saturdays. They’re now held on a Friday too. And uniforms in work places can often be adapted to include variations like turbans.

But courts recognize that it’s not always possible. Indirect discrimination can be lawful if it can be proved that there’s a good enough reason – an objective justification for it.

For example, hospital infection control policies that ban staff from wearing jewelry disadvantage some groups. This is justified on the basis of public health.

Public health is of course a legitimate ground for limitations to freedom of religion or belief. But in relation to indirect discrimination, courts accept other grounds too. For example, a company might argue that it would undermine company interests to change its policies. A clothes shop that requires salespeople to wear clothes from its product range would probably not be required to employ a salesperson who refused to wear the company’s products on religious grounds.

So while direct discrimination is banned, indirect discrimination is meant to be avoided as far as possible by finding reasonable ways to accommodate the needs of individuals and groups.

Once we’ve established that the limitation is not discriminatory, we need to decide is if it’s proportionate. 

To what extent should the manifestation be limited? What should be banned, for whom, when and where?

There’s a huge difference between banning particular kinds of religious clothing for particular professions in particular kinds of workplace and banning everyone from wearing religious clothing on the street!

So international courts look at proportionality. Courts in the United States apply an even stricter test – limitations have to be applied in the least restrictive way possible.

One final aspect that some courts take into consideration is the margin of appreciation. The world is diverse and human rights principles can be put into practice in many different ways, grounded in the national context.

Because of this some international courts apply a ‘margin of appreciation’ which basically means that national authorities understand the national context best and are best placed to formulate national law, so international courts grant them a degree of discretion.

The question of how wide the margin for state’s discretion should be, and whether the courts give too wide a margin is an important subject for debate!

To sum up:  

In thinking about whether a limitation is permissible, we use the following process

• Decide if a law limits the absolute right to have or change your religion or beliefs, or a manifestation.
• Determine if the behaviour limited counts as a protected manifestation.
• Check if the limitation has a legal basis
• Determine to what extent the manifestation poses a threat to a legitimate ground for limitation, such as the rights and freedoms of others.
• Check if the limitation is directly or indirectly discriminatory.
• And consider if the limitation is proportionate to the threat posed and will be effective in meeting it.    

When we understand the arguments courts should use in order to comply with human rights, we can claim our rights more effectively. We can also contribute more fully to the public debate about whether the courts and the government are getting it right or whether they are in fact violating freedom of religion or belief.

Copyright SMC 2018