Guiding Principles And Recommendations On Security And Religious Freedom

Board of Experts of the International Religious Liberty Association
Leuven, Belgium
June 11, 2003

The Mutually Reinforcing Relationship of Security and Religious Freedom

Religious freedom requires security, just as true security requires religious freedom. The two are interdependent, mutually reinforcing, not exclusive, and do not collide or conflict. Too frequently, responses to religion-based terrorism have involved efforts to enhance security at the expense of religious freedom. These responses have often proved counterproductive, and result in violations of international standards of human rights. Such violations, which diminish both security and religious freedom, must be opposed by governments, religious groups, people of faith, and all those who truly value human rights.

This document, produced by In the International Religious Liberty Association’s Group of Experts,[1] addresses religious liberty concerns in connection with responses to the terrorist acts of September 11, 2001, and subsequent events, and identifies guiding principles and recommendations to advance efforts by both public authorities and religious communities in resolving these issues.

Terrorism can take many forms. Without entering into the complexities of defining terrorism, it is important to recognize different situations in which terrorism occurs. Terrorism carried out by nation states can occur when totalitarian governments oppress populations or minority groups. Oppressed populations may resort to acts of terrorism against occupation armies or tyrannical regimes. Other forms of terrorism involve the resort to violence that targets innocent people in order to instil fear, challenge governments, and destabilize whole societies. This document deals with the reaction to the kind of religion-based terrorism that is exemplified by the events of September 11, 2001.

Similarly, “security” has multiple aspects , including:

• “security of person,”[2] ensuring respect for personal liberty and integrity, both physical and psychological
• “public safety,”[3] guaranteeing collective security under the rule of law. National authorities have the duty to uphold and protect these personal and collective dimensions of security
• “international security,”[4] promoting peace and stability among nations.

Religion-based terrorism threatens all of these aspects of security—personal, national, and international.

The Importance of Religious Freedom to Security

Many nations have responded to recent events, as well as to the call in various United Nations Resolutions for action to counter terrorism through the acceptance of relevant international conventions and protocols, and by adopting laws and implementing other measures designed to combat terrorism.

While recognizing both the need to take firm action to prevent terrorism and the complexity of the issues involved, the Group of Experts is concerned that some of the responses have resulted in inappropriate actions that violate fundamental human rights—in particular the right to freedom of religion or belief. Examples include excessive tightening of religious association registration rules, unwarranted intrusion into the internal affairs of religious groups, religious and ethnic profiling, the exploitation of national security to limit religious pluralism, the use of laws repressing religious hatred to constrain freedom of religious speech, and the application of restrictive immigration laws in ways that prevent free movement of religious personnel.

Security cannot be achieved without addressing the underlying issues that give rise to terrorism; these issues include injustice, humiliation, poverty, dictatorship, hatred of other national, ethnic, or religious groups, and violations of human rights and fundamental freedoms, particularly denial of freedom of religion or belief. The struggle against terrorism must confront the root causes of terrorist activity, and not just its violent consequences.

Many terrorists have publicly claimed that their acts are grounded on religious beliefs. Moreover, religion continues to be exploited to fuel terrorist threats and actions. Failure to grasp the role that religious beliefs play in motivating terrorist activities will result in reduced security. Disrespect and lack of awareness of religious freedom trigger responses that jeopardize social stability and security.

Religion, society and state, in the minds of many, are so intertwined that they allow little or no liberty for others. Religion, for some, can become a political creed. Often it constitutes a pervasive way of life. Even for those who no longer adhere to the tenets of a particular belief system, religion may be a source of personal and collective identity. Responses to terrorism and security threats must take these aspects of religion seriously.

Respecting freedom of religion is more effective in gaining loyalty of citizens and in achieving peace and security than are weapons and coercive measures. At the same time, religious communities must understand that genuine religious freedom does not confer authority to impose beliefs or to ignore the rights and freedoms of others.

As authorities recognize the vital importance of freedom of religion while at the same time striving to protect security, responses to situations should be developed on an issue-by-issue basis, giving due regard to the immediate and long term consequences of possible limitations on fundamental freedoms.

Relevant Principles of International Law

The community of nations shares values and principles that are able to foster mutual understanding and cooperation in pluralistic societies. Among the international instruments supporting these universal values are the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief of 1981, and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992.

Both “security of person,” together with life and liberty, and “freedom of thought, conscience and religion” are recognized basic human rights[5] which should never be separated when dealing with the problem of religion-based terrorism.

At the same time, “the use of religion or belief for ends inconsistent with the Charter of the United Nations and other relevant instruments of the United Nations is inadmissible.”[6]

International standards have provided clear guidance concerning the narrow range of circumstances under which states may legitimately impose limits on freedom of religion or belief. The Group of Experts affirms the validity of the carefully defined and narrow limitations authorized by Article 18 of the International Covenant on Civil and Political Rights and the United Nations Human Rights Committee’s official interpretation thereof set forth in paragraph 8 of its General Comment No. 22 (48)[7], which specifically notes among other matters that limitations based on national security alone are not permitted.

With the foregoing considerations in mind, the Group of Experts suggests to public authorities, national and international, as well as to religious leaders and communities, the following guiding principles and recommendations:

PRINCIPLES AND RECOMMENDATIONS

Responsibilities of Society

1. Society has the right to protect itself against aggression, whether by legally-founded preventive means or by prosecution of those responsible for crimes. The duty to assure security, including physical, psychological and moral integrity, is proper to public authorities. Under the rule of law, where legislative, judiciary and executive powers are separated and mutually controlled, the necessary protection of security should be consistent with the respect for liberty and all other human rights.
2. Both on a global scale and on a national level, the underlying causes of terrorism, that include but are not limited to unequal distribution of knowledge, technology and economic resources, should be overcome by promoting interaction in socio?economic and cultural life, negotiation, and dialogue.
3. Situations of oppression must be dealt with by following the legal and agreed mechanisms provided in the Charter of the United Nations, and not by terrorism.
4. Security should not become the sole value of a society, even under the threat of terrorism. Those regimes established under the auspices of “national security” have proved to be repressive and incompatible with the culture of human rights.
5. Comparative study and analysis of the laws passed by various countries in the effort to combat terrorism should be undertaken with the intent to analyze compliance with international human rights standards, including the requirement to observe the narrow limitations clause of Article 18, paragraph 3, of the ICCPR, and also to identify best practices and more effective means of implementation.

Responsibilities of the State in Combating Terror

1. Along with other values guaranteed by law, security of persons and public safety may be defended by the resort to public force. Public force is a legal means to assure that law may prevail. Any resort to such force by the police or the military should be proportional to the achievement of its objective.
2. In combating terrorism, the state should avoid adopting exceptional measures such as widespread arrest, imprisonment for extended periods without charge, new use of military courts or secret tribunals, which could be counterproductive, viewed as excessive, and open new fields of tension. The state should apply strict scrutiny as to those measures to assure that they genuinely enhance security without disproportionate cost and do not infringe religious freedom.
3. While some measures may in fact enhance security (such as improving cooperation among police and intelligence services), states should not undermine security by broadly alienating and antagonizing the very people whose help is most needed to combat terrorism and violence. The state should provide compelling evidence that its measures are effective, necessary, and not counterproductive.
4. States undermine long-term security when they pursue security and any other objectives that are inconsistent with respect for human rights and the rule of law.
5. In responding to terrorism, the state may impose sanctions only for actions, and not for thoughts, beliefs, or religious identity. State actions that have the effect of subjecting individuals to sanctions or discrimination, simply for belief or for membership in religious organizations, are unacceptable.
6. Public authorities should not impute responsibility for terrorist activities indiscriminately to religious bodies or to non-culpable members by holding them liable for the crimes of some individuals, even when such terrorism is supposedly carried out in the name of the religion or group. Where it is proved that terrorist conduct is directly and intentionally provoked by the teachings of religious leaders, the latter may be prosecuted for their personal action of incitement to crime. The state should not refuse or ban the legal existence of religious bodies without proof that they pose a direct threat to public safety, health, order, or the rights of others.
7. Legal definitions and elements of crimes need to be structured so as to make certain that vague and overbroad terms are avoided, and that excessive scope of liability which could ensnare the innocent is prevented. In particular, criminal norms that establish inchoate liability such as the law of attempts and conspiracy, and other laws punishing group criminality, money laundering legislation, and the like, should be structured in a way that minimizes the risks that law-abiding citizens and organizations may violate criminal law.
8. When dealing with individuals who have been detained or confined in connection with national security concerns, states have an obligation to respect the human rights of those involved, including their right to freedom of religion or belief.
9. Public authorities concerned with security issues should consult with religious leaders and experts on human rights, with a special focus on the fundamental right to freedom of religion or belief. In this way, resolution of the many issues involved may be achieved following a case-by-case approach.

Responsibilities of Religious Leaders, Believers and Communities

1. Religious leaders and believers should behave in an informed and responsible manner when they speak of other religions and their members. In particular, they should avoid attributing to other religious groups intentions that the groups may not have.
2. Religious leaders have a particular responsibility to denounce religion-based terrorism arising within their own religious community.
3. Throughout history, religions have provided inspiration for peace and mutual understanding, and have also played an important role in strengthening social solidarity. The moral and peace-promoting functions of religion make it a strong ally for enhancing security.
4. Religion should never serve as a justification for hatred, disrespect of others, or violence. While religion has at times been used as a justification for violence, the needs of society in which different religions and cultures coexist demand that religions interpret their sacred texts, doctrines, and traditions according to this reality of peaceful coexistence.
5. The right of religious freedom does not protect the incitement to religious persecution or violence, even if based on sacred scriptures or religious law. Religious leaders, believers, and communities should cooperate with public authorities to protect public safety, justice, and the rights of every person.
   
   [1] The Group of Experts convened in three meetings, in Washington, D.C. from November 14-17, 2002, in Paris on February 4, 2003, and in Leuven from June 9-11, 2003. The work of the Group of Experts was supported by the International Religious Liberty Association, the International Association for the Defense of Religious Liberty, the International Academy of Freedom of Religion and Belief, the International Commission on Freedom of Conscience.
   [2] International Covenant on Civil and Political Rights, art. 9(1) (1966).
   [3] Id., art. 18(3).
   [4] Charter of the United Nations, art. 1 (1945).
   [5] Universal Declaration of Human Rights, articles 3 & 18 (1948); International Covenant on Civil and Political Rights, articles 3, 9, & 18 (1966).
   [6] Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, Preamble.
   [7] See the legal analysis, including the text of the UN Human Rights Committee’s official interpretation of the meaning of the limitation clause of Article 18, annexed at the end of this document.
   

Appendix

LEGAL ANALYSIS OF LIMITATION CLAUSE OF ARTICLE 18 ICCPR

The balance between protection of religious freedom and taking into account necessary limitations was carefully structured in Article 18(3) of the ICCPR. The risks of terrorist activity were known when the key international instruments were adopted, and the principles enunciated in those instruments remain sound.

These standards have underscored the significance of freedom of religion or belief by noting that even in time of public emergency, “[n]o derogation from article . . . 18” may be made. International Covenant on Civil and Political Rights, Article 4, paragraph 2. Freedom of religion differs in this regard from other fundamental freedoms such as freedoms of expression, peaceable assembly, and association, which are derogable during times of declared public emergency.

According to Article 18 of the International Covenant on Civil and Political Rights, “Everyone shall have the right to freedom of thought, conscience and religion.” The internal right to belief is absolute, and may not be constrained by states. Only “manifestations of religion” may be subjected to limitations, and then only under the narrow conditions specified in paragraph 3 of Article 18, which provides: “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.”
General Comment 22(48), paragraph 9, provides in full:

Article 18(3) permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. The freedom from coercion to have or adopt a religion or belief and the liberty of parents and guardians to ensure religious and moral education cannot be restricted. In interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non?discrimination on all grounds specified in articles 2, 3 and 26. Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner (Emphasis added ) United Nations Human Rights Committee, General Comment No. 22(48), Adopted by the U.N. Human Rights Committee on 20 July 1993, U.N. Doc. CCPRJC/21/Rev.l/Add.4 (1993), reprinted in U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994)

The General Comment stresses that restrictions of religious freedom not based on grounds explicitly mentioned in Article 18 are not permitted. The Human Rights Committee specifically notes that for this reason, limitations based on national security alone are not permitted. That is, blanket concerns about national security are not enough to justify infringing the right to freedom of religion or belief. That right can only be limited when the state measure in question deals with a concrete and genuine threat to “public safety, order, health or morals, or the fundamental rights and freedoms of others.” While individual acts of terrorism can clearly be addressed within these limits, a generalized concern to avert terrorism does not allow states to derogate from or engage in practices that curtail religious freedom.

Similarly, a generalized sense of offence to the public order in the sense of order public does not suffice. Of course, terrorist violence does violate public order in the narrower sense of causing an actual physical disturbance in public space, and laws aimed to curtail such violence are clearly permissible. Even when limitations are permissible, however, they must be narrowly tailored and proportional to the objective pursued.

The existing limitations clause for Article 18 thus permits States to address terrorist acts including religiously-motivated acts, but insists that laws authorizing such limitations be carefully crafted to minimize the interference with freedom of religion or belief.