In the context of international criminal law and its nexus to the protection of human rights, a
“religious group” is considered a “protected group”, and an adherent’s resultant “religious
identity” is a “protected ground” of human existence. Consequently, serious measures of
discrimination imposed on persons for reasons of their religious identity constitute a severe
deprivation of fundamental human rights, and establish the individual criminal responsibility
of the instigators for religious persecution as a crime against humanity (“grievous religious
persecution”) in terms of the Rome Statute of the International Criminal Court (ICC). The
inherent problem is that persecution on the basis of religion is not the only mode or ground
of persecution criminalised by the Rome Statute, nor does it usually constitute the only ground
for persecution in any specific situation. The mode or ground of persecution, or the multiplicity
thereof, is based on a protected aspect of the victim’s identity, which made him or her the
target of the persecutor’s discriminatory intent in the first instance. Therefore, religious
persecution must be recognised and differentiated from other modes of persecution. In this
regard, an assessment of the role that an individual or collective religious identity has in
relation to the persecutor’s discriminatory intent in any given situation, is essential for
determining the mode of persecution. However, the complexity of human identity often makes
it difficult to identify the specific basis causing the perpetrator to select and target his victims
in a discriminatory manner.
A person’s identity comprises multiple “identifiers”, including religion. “Religious
identity” is best understood in the context of the right to freedom of “thought, conscience,
religion or belief”. In general, “religious identity” relates to the derivative effect of holding
a certain deep existential view, which becomes part of their identifying label, whether in a
person’s own mind or that of others, or in terms of social standing. This fundamental right to
one’s individual or communitarian identity is a core aspect of protection against discrimination
and unequal treatment under international human rights law. In relation thereto, the
discriminatory nature of persecution signifies that a person is reduced to their identification
or an identifying element, and deliberately targeted for discriminatory treatment. Religious
persecution is distinguishable from other modes of persecution based on the primacy of the
victim’s religious identity, which resulted in him or her becoming the target of the persecutor’s
discriminatory intent. Consequently, the perpetrator’s discriminatory mindset and his subjective
perception of the victim’s religious identity are the most crucial elements in establishing the
ground of persecution. However, a person’s “religious identity” is not limited to mere identity
semantics, but may have a number of important functions and consequences. Firstly, a religious identity may inspire an adherent’s conception of life and inner consciousness (i.e. religion as
a belief – deep existential view). Secondly, a religious identity may influence an adherent’s
sense of personal or collective identity and belonging (i.e. religion as an identifying element).
In the context of religious persecution, this means that a victim’s religious identity becomes
the identifying factor for which he or she is discriminatively targeted. Lastly, a religious identity
may affect concomitant individual or communitarian ideologies and practices, which may
influence or even dictate an adherent’s way of life and how they relate to, or perceive others
(i.e. religion as a way of life). While most religious identities impose a commitment to a belief
and the exercise of religious behaviours contributing to a positive sense of moral behaviour,
other religious identities may be the root cause of manifestations of intolerance, discrimination
and persecution in instances where a religious ideology negatively motivates interaction. In
this regard, it is crucial to differentiate, where applicable, between religiously motivated
persecution (persecution in the name of religion), and religious persecution (persecution on
the basis of religious identity). By itself, a persecutor’s “religious motive” does not necessarily
imply that the persecutor’s conduct is directed at targets because of their religious identity.
Thus, persecution is committed and justified in the name of the persecutor’s self-righteous
religious identity, yet his persecutory conduct may be directed at any collective cause, belief,
and/or identity that threaten his self-righteous aspirations. In such instances, the relevant
ground of persecution will depend on the group or identity that is discriminatively targeted,
which may be, for example, homophobic, xenophobic or otherwise. Thus, religiously motivated
persecution may very well intersect with other grounds of persecution. In such instances,
religiously motivated persecution is distinguishable from, and does not constitute, religious
Religious persecution is a form of persecution in terms of which the “religious identity”
of those persecuted constitutes the primary or predominant reason for their suffering. In order
to assess the nexus between the victim’s religious identity and the persecutory conduct, the
point at issue is whether the victim’s religious identity was the primary factor resulting in him
or her becoming a target of discrimination and persecution. If one were to ignore the victim’s
religious identity, does the basis of discrimination and persecution also disappear, or not?
Depending on the result, religion may constitute the primary basis for persecution, or it may
amount to an auxiliary factor. The required nexus is satisfied if the perpetrator, at the time of
committing the persecutory acts, specifically targeted the victim based on his/her actual,
perceived, or assigned religious identity.
The primacy of the persecutor’s religious discriminatory mindset is the core aspect that
determines or contextualises persecutory acts as religious persecution. Such a discriminatory
intent may be directed at a person, identifiable group or collectivity with a particular religious
identity (“specific religious discriminatory intention”), or that lack an accepted religious
identity (“negative religious discriminatory intention”), either based on objective criteria or
in the mind of the accused, provided that such a religious discriminatory intent constituted
the primary (not necessarily exclusive) basis for targeting those victims. Thus, its quintessential
nature requires that religious persecution must be based on religious discriminatory intent,
which may be provided through proof of a direct or inferred discriminatory intent.
The inference is therefore that in terms of international criminal law, religious persecution
is an accurate classification of the context of persecutory conduct if the victim’s “religious
identity”, whether actual, perceived or assigned, was the primary basis for discrimination,
regardless of the persecutor’s motive for such conduct and irrespective of the existence of
other possible intersecting identifiers. Based on this reasoning, it may be possible to identify “religious identity” as the specific ground of persecution in a given situation, provided that
it is possible to acquire proof of a religious discriminatory intent on the part of the persecutor;
and that the discriminatory intent is sufficiently tethered to the victim’s identifiable religious
identity, or lack thereof. Thus, classifying a situation as religious persecution requires an
understanding of the victim’s religious identity and how it relates to the perpetrator’s
discriminatory mindset. An assessment of the role of religious identity in a given situation is
therefore essential in order to determine the mode of persecution.
’n Persoon se identiteit bestaan uit veelvuldige “identifiseerders”, insluitende godsdiens.
Hierdie godsdiens georiënteerde identiteit (“godsdienstige identiteit”) moet geïnterpreteer
word teen die agtergrond van die reg op vryheid van “gewete, godsdiens, denke en oortuiging”.
Oor die algemeen is “godsdienstige identiteit” verwant aan die afgeleide effek van ’n persoon
se bepaalde eksistensiële oortuiging wat sy/haar innerlike bewussyn en diep eksistensiële
identiteit uitmaak, asook sy/haar begrip van die lewe vorm. As ’n beskermde aspek van menslike
identiteit, sal ernstige diskriminerende maatreëls op grond van godsdienstige identiteit neerkom
op die skending van grondliggende menseregte. Dit kan ook tot gevolg hê dat die vervolger
individuele strafregtelike aanspreeklikheid kan opdoen vir godsdiensgebaseerde vervolging
as ’n misdaad teen die mensdom. Om sodanige vervolgingsmodus te bepaal, word vereis dat
die vervolgde se godsdienstige identiteit die primêre diskriminerende grondslag is waarop die
vervolger sodanige slagoffer teiken. Dus, om ’n situasie as godsdiensgebaseerde vervolging
te klassifiseer, vereis ’n begrip van die vervolgde se godsdienstige identiteit en hoe dit verband
hou met die vervolger se diskriminerende opset. ’n Bepaling van die rol van godsdienstige
identiteit in ’n gegewe situasie is dus noodsaaklik om die vervolgingsmodus te bepaal.
Van Oort, Johannes (Hans)(Brill Academic Publishers, 2017-01)
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