Of Hedgehogs and Representation: Chasing Religious Persecution in Law

Abstract

We hear about ‘religious persecution’ with great regularity in recent years, but what is meant by it? Where there is a rallying call of ‘religious persecution’, what precisely is meant by that? Is there a minimum threshold for a situation qualifying as religious ‘persecution’? Is it in fact occurring with greater regularity than in past decades or is it just being reported more? Is it increasingly politicized and, if so, why? This article analyzes these questions.

Keywords:

• Religious persecution
• freedom of religion or belief
• law

We hear about ‘religious persecution’ with great regularity in recent years, but what is meant by it? Where there is a rallying call of ‘religious persecution,’ what precisely is meant by that? Is there a minimum threshold for a situation qualifying as religious ‘persecution?’ Is it in fact occurring with greater regularity than in past decades or is it just being reported more? Is it increasingly politicized and, if so, why? This is the subject of examination in the examination below.

Background

We have likely all observed that recent years have seen a notable increase in interest in ‘religious persecution.’ From its previous status as a relatively obscure and rare term, it is now regularly in the headlines and pronounced by state leaders and politicians. It serves as the rallying call for an ever-increasing number of advocates and lobby groups, and there is greater attention to it by states and in policymaking. It even enjoys dedicated funding streams, annual summits, and data collections.

This increased currency, however, has certainly not sharpened understanding of what ‘religious persecution’ constitutes. It stretches from serving as a substitute term for genocide, to being used by people who feel slighted for having lost previous privileges for their religion in the public sphere. The latter is why ‘hedgehogs’ are in the title of this article. The outspoken former member of parliament Anne Widdecombe once said that you have better representation as a hedgehog in Britain than as a Christian (Catholic Herald 2011). This brings to the fore the issue of loss of representation in the public sphere.

The extent of this wide and confusing breadth of usage of religious persecution suggests how timely and necessary attention to this matter is. Whereas most of these usages do not necessarily assert themselves as legal claims, even when the claim is a political one, even as advocacy calls or headlines, they often call for legal responses. For this reason the legal implications of the term are highly pertinent. Before considering its legal understanding though, attention will be given to the burgeoning political science literature which offers a number of critiques of religious freedom and religious persecution.

Critiques

The main critiques offered in related academic literature can be summarized as being three-fold. The first is the argument that the politicization of religious persecution and religious freedom is problematic and dangerous. This critique primarily relates to the international level. The second is that the globalization of freedom of religion, government engagement with faith communities, and legal protections for religious minorities (all of which relate to responses to religious persecution) encourage the politicization of state-sponsored religious distinctions. This critique primarily relates to the national level. The third is that human rights law seeks the political neutering of religion and the complete separation of law and religion, and that this is impossible. This critique is primarily normative.

Some areas that this literature does not give sufficient attention to, however, relate to the questions of where, what type, and which level of politicization is being asserted. Secondly, it does not clearly distinguish the advocacy of religious persecution and its legal underpinnings. Furthermore, the difference between religion as a category in international affairs and freedom of religion or belief in international human rights law is not explored in this literature, and neither is the legal meaning we can attach to the term ‘religious persecution.’ Let us turn to each of these below.

Politicization

There is a burgeoning and recent political science literature regarding the politics of religious persecution and religious freedom, which necessarily considers ‘politicization’ as being negative and dangerous. The stance this literature does not explore is the question of whether politicization is always negative for human rights matters? A level of politicization is beneficial for interest in the matter concerned, for the weight given to the topic, for the investment of legal and diplomatic expertise, for a hearing ear to reports and findings, and the support given in terms of funding, structures and other resources. There is a level of politicization that surrounds all human rights matters, and this is to be expected, and this also relates to religious persecution.

We should also give attention to which level of politicization we are considering. Are we focused on politicization at the local and national level, or at the regional level, or at the UN? The level of politicization is significant. Just by way of example, the politics—and often the ‘contested’ politics—around religious persecution and/or freedom at the OSCE and in Turkey, and in Turkey around a particular question such as the educational provision granted Alevis for example—are vastly different enquiries.

Even beyond the definitional aspects and the level at which we are operating, there are a myriad areas in which the question of the politicization of religious persecution and/or freedom can be examined. These include enquiries into dozens of possible questions around the politicization of ‘religion’ in terms of aid and religious ‘giving;’ how international politics and foreign policy impacts particular approaches to freedom of religion or belief; NGOs, NGO lobbying and NGO funding; migration; discrimination and persecution; education, educational access and provision, syllabi at schools; recognition and registration; minorities; courts and judicialization (the reliance on courts and judicial means to deal with contentious issues of an outright political nature and significance); ‘experts’—at the national level: in religious affairs ministries, in courts, etc.; and block voting and ‘religion,’ e.g. at the United Nations.

Collapsing the politics of religious persecution and/or freedom—without consideration of definitions, levels, and areas or application—erroneously collapses all of this into a single phenomenon.

With each and every one of these questions (of ‘which politicization?’) we should superimpose the question of ‘politicization, at which level?’—to read, for example: minorities, at the local and national level, regional level, or UN level. Context is all important to this analysis.

We therefore cannot consider this as a unitary topic with singular conclusions that can be drawn from all of it. There is no “singular explanation of political outcomes” (Shakman Hurd 2015, 63) around this wide range of issue areas, even though they all relate to freedom of religion or belief. Together they obviously create some kind of web of causes, key impulses and central factors. Nevertheless reducing it to singular forces and causes would be misguided. It would also be negligent of the shifting tides and constant contestations taking place at each of these levels and each of these arenas. This echoes Shakman Hurd’s quest of

(d)ethroning religion as a singular and stable interpretive and policy category … reconsidering claims of religion or sect as viable explanations of violence, discrimination, and persecution – or, for that matter, freedom, peace, and toleration. (Shakman Hurd 2015, 63)

Much disquiet in the recent political theory literature regards the over-utilization of ‘religion’ as an explanatory category. Shakman Hurd observes “the persistent discomfort” experienced “when confronted with the increasingly common recourse in international public policy, human rights advocacy, and legal and foreign policy circles to ‘religion’ as an explanatory category and a platform for policy innovation and implementation. Different aspects of politics are being collapsed too readily into the narrative of religious persecution” (Shakman Hurd, 2017, XI)

This kind of ‘politicization’ is something that most human rights lawyers are already very cautious of as well. They, too, are generally vigilant to not over-state or privilege ‘religion’ and not to over-stretch the term ‘religious persecution.’ However, human rights lawyers would not then ‘throw the baby out with the bath water’ and become less supportive of the need to address religious persecution as a valid concern of human rights law. Instead, they would ensure care in honestly evaluating the alleged cases, be mindful of the range of legal and other causes to complex situations, and seek to neither over-state nor under-state the ‘religion’ factor. The discipline of human rights law, as a sub discipline of Public International Law focused on international human rights law standards and associated legal regimes such as humanitarian law, refugee law, and criminal law—I suggest—itself leads to a reluctance to over-simplify and privilege one response over others. The law encourages detailed focus on context—on the facts of the case—and not on a simple ‘band aid’ approach. The further mantra of ‘universal, indivisible, interdependent and interrelated’ (Vienna Declaration and Programme of Action, para. 5) also pushes human rights lawyers away from the hasty privileging one set of rights concerns over others.

Human rights lawyers are not, in any case, in the business of utilizing ‘religion’ as an explanatory factor. They analyze and highlight the legal challenges underscoring particular situations and suggest legal remedies. Part of this analysis would be to recommend respect for freedom of religion or belief (Bielefeldt, Ghanea and Wiener 2016) as upheld in international instruments and binding on States in addressing religious persecution; but even this recommendation should not overshadow the recognition of other human rights violations that may be entailed.

In fact, it is hard to imagine a case of religious persecution that does not entail violations of a whole range of rights - economic, social, cultural, civil and political. On the other hand, it is possible to imagine a case of religious persecution which entails numerous rights violations but where violation of freedom of religion or belief finds itself largely in the background. That is, that on the face of it the religious persecution seems to primarily draw from, for example: communal tensions, an overall breakdown of law and order or economic grievances and that the targeted community shares a number of characteristics beyond just their ‘religion’—for example, tribal, ethnic, linguistic, in terms of geographic location. As Shakman Hurd rightly puts it, taking on board the experience of “individuals and communities that are subjected to, and shaped by” discrimination or persecution is a key way of avoiding simplistic claims and platitudes of “religious difference as construed by those in positions of power” (Shakman Hurd 2015, 61).

Advocacy for ‘Freedom of Religion or Belief’ or for ‘Religion’?

All this is fine and helpful, though it does not much apply to human rights lawyers. But this political science literature also seems to draw a necessary relationship between: ‘religion’ as a category, freedom of religion or belief as a matter of human rights law, and religious persecution. It furthermore appears to blur the distinction between human rights law and a human rights advocacy which is not framed and informed by the full framework of the law. Shakman Hurd insists that in arguing against “a politics defined by religious difference” her

intention is neither to judge individuals or local groups who choose to make political claims in the language of religious freedom, nor to undermine local groups working to oppose violence and discrimination. I do not seek to minimize the tragic effects of violence, discrimination, and inequality, whether they occur in Chicago or Cairo. At the same time, there is a larger story to be told about what is often rather hastily described as “religious” violence, persecution, freedom, and establishment.” (Shakman Hurd 2017, XII)

This is precisely where a fairly clear distinction can be drawn between advocacy and law. Most of this political science literature seems to, in fact, be focused on advocacy around the discrimination or persecution of religious minorities. Advocacy, by its very nature, seeks out political allies for particular causes. Religious freedom advocacy may well over-state ‘religious’ violence and persecution. Human rights lawyers are generally a lot more wary of doing so.

The ‘Political Neutering of Religion’?

Some of this political science literature goes yet further and asks the question of whether human rights law seeks “the political neutering of religion?” Sullivan, Yelle and Taussig-Rubbo describe this as being “not only central to the emergence of this new order, but also necessary for its preservation and for the achievement of the justice that it is supposed to guarantee” (Sullivan, Yelle and Taussig-Rubbo 2011, 1).

It is not that international human rights law outrightly seeks “the political neutering of religion” as its direct objective. The question is whether non-discrimination and equality, to some extent, necessitate this? They elaborate that

Most polities in the world today claim to guarantee religious freedom for their citizens. All also profess to respect the rule of law. How these two goals might be practicable is far from evident. The rule of law turns out to look quite different in different places, dependent as it is on local histories and cultural and religious cosmologies and anthropologies that are far from agreed upon. Ensuring the religious freedom of citizens requires a constant cutting and fitting of religion to adapt to the demands of law.” (Sullivan, Yelle and Taussig-Rubbo 2011, 16)

They also state that this requires imagining citizens as secular. Since Sullivan, Yelle and Taussig-Rubbo reject the possibility of “a complete separation between law and religion,” they therefore also draw conclusions with regard to “the impossibility of religious freedom” (Sullivan, Yelle and Taussig-Rubbo, 6).

However, it is not ‘the’ objective of the human rights law project to secularize citizens and full respect for freedom of religion or belief does not require it either. It would seem to be a far stretch from drawing out the implications of equality and non-discrimination for all—as captured in freedom of religion or belief and other rights standards—to the imagining of ‘citizens as secular.’ Perhaps this claim is the same as stating that the gender equality objectives of human rights law have as their objective to emasculate men.

This emphasis on equality and non-discrimination also challenges a further critique that ‘the globalization of freedom of religion’ (note, not freedom of religion or belief) feeds into the sharpening of ‘state-sponsored religious distinctions.’ Shakman Hurd states that her book Beyond Religious Freedom

undermines the assumption that the solution to dilemmas of collective governance lies in the globalization of freedom of religion, government engagement with faith communities, and legal protections for religious minorities. These measures create political spaces and institutions in which state-sponsored religious distinctions not only are inevitable but become increasingly publically and politically salient. (Shakman Hurd 2017, XII)

Certainly a good number of states are playing the ‘religion card.’ However, a closer consideration of the relevant State parties would suggest that the religious difference-affiliation of the States was prior to the political saliency of religious persecution and religious freedom. In other words, it is not religious freedom that fuels state-sponsored religious difference. It is States that see merit in playing the religious difference cards that seek to make this seep into the question of religious freedom at the international level, and they have done so at numerous occasions since the 1940s. It is not a new phenomenon.

The Term ‘Religious Persecution’

In such a terrain, can we root the vastly different usages of the term ‘religious persecution’ in a human rights law understanding? We set out three claims to religious persecution in the title: bloodshed, concerted attack, and maintaining representation (e.g. at levels of state procedure, ceremony, representation, public presence). What is the legal resonance and meaning behind each of these terms? Do they share any commonality? And how would we understand them in human rights law terms?

Bloodshed

Bloodshed, in human rights terms, could be understood as ‘proper’ persecution: mass violations of a range of human rights in a targeted manner with intentionality. At one end of the spectrum it touches upon genocide or genocide prevention. For example, Lord Alton’s call for the UK to formally acknowledge the Daesh/ISIS treatment of Christians, Yezidi, and other minorities as genocide:

Daesh is committing genocide against those who do not subscribe to their mis-interpretation of Islam. Notably against the minority: Christians, Yezidi, Turkmen, Shabak, Kurds & Shia. The UK must follow the example of the European Parliament and formally acknowledge the genocide, so it can be stopped. (David Alton 2016)

At another it includes persecution in terms of the ICC understanding of article 7(2)(g) of the ICC Statute: “‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Article 7(1)(h) of the ICC Statute expands on ‘Persecution; as being “against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender … or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;”

Concerted Attack

Concerted attack, in human rights terms, can perhaps be understood under the heading of discrimination and stereotyping. To be able to critically examine this, we can consider the headline news on 24 December 2015 in The Times. The headline said: “Christians are the most persecuted of all world faiths, Even the Sultan of Brunei has banned Christmas celebrations” (Nick Baines, The Times 2015). I raise it to illustrate the conflation of persecution and discrimination. The article in The Independent the same day raising the concern of Cardinal Vincent Nichols was more nuanced (Matt Dathan, The Independent 2015).

Maintaining Representation

Maintaining representation is much harder to situate in human rights understanding. This is not to say that it is not ‘felt’ by proponents to be a serious concern, but that against an understanding of equal treatment and the risks of discrimination against ‘others’ where there is a state-religion, it needs to be considered within the context of those concerns. Recall the above “hedgehog” remark of Anne Widdecombe (which she made in an address to the Catholic charity Aid to the Charity in Need in 2011). The Daily Mail expressed this concern by Rev. Mullen under the headline of “Ann Widdecombe is right: Christianity in Britain today is under severe persecution” (Mail Online 2011). However, the more detailed coverage in the Catholic Herald was more nuanced and related to foreign policy, quoting her as saying “You stand a better chance of earnest representation [in UK foreign policy] if you are a hedgehog—and I speak as a patron of the Hedgehog Protection Society. In the last 10 years, how many debates have there been on persecution of Christians, how many Government statements on the subject?” (Catholic Herald 2011).

Conclusion

Perhaps the gap between the political and the legal understandings of these terms—and particularly the advocacy and public usage of the terms—will always remain. However, we have a role in encouraging a more measured usage, without downplaying the strength of feeling and emotion behind the resort to them.

Additional information

Notes on contributors

Nazila Ghanea

Nazila Ghanea is Associate Professor in International Human Rights Law at the University of Oxford. She serves as Associate Director of the Oxford Human Rights Hub and is a Fellow of Kellogg College (BA Keele, MA Leeds, MA Oxon, Ph.D. Keele). She serves as a member of the OSCE Panel of Experts on Freedom of Religion or Belief and on the Board of Trustees of the independent think tank, the Universal Rights Group.