Rule 104. Respect for Convictions and Religious Practices

Rule 104. The convictions and religious practices of civilians and persons hors de combat must be respected.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. A specific application of this rule for persons deprived of their liberty is contained in Rule 127 on respect for the convictions and religious practices of persons deprived of their liberty.
The obligation to respect the religious convictions and practices of persons in occupied territory was already recognized in the Lieber Code, the Brussels Declaration and the Oxford Manual.[1] It was codified in the Hague Regulations.[2] This obligation is extended to all protected persons under the Fourth Geneva Convention.[3] The Geneva Conventions require respect for religion and religious practices in a series of detailed rules concerning burial rites and cremation of the dead, religious activities of prisoners of war and interned persons, and the education of orphaned children or children separated from their parents.[4] Respect for convictions and religious practices is recognized in Additional Protocols I and II as a fundamental guarantee for civilians and persons hors de combat.[5]
The requirement to respect a person’s convictions and religious practices is set forth in numerous military manuals.[6] Violation of the right to respect for a person’s convictions and religious practices, in particular forcible conversion to another faith, is a punishable offence under the legislation of several States.[7] This practice includes that of States not, or not at the time, party to the Additional Protocols.[8] This rule was upheld in several war crimes trials after the Second World War. In the Zühlke case, the Special Court of Cassation of the Netherlands found that the refusal to admit a clergyman or priest to a person awaiting execution of the death sentence constituted a war crime.[9] In the Tanaka Chuichi case, the Australian Military Court at Rabaul found that forcing Sikh prisoners of war to cut their hair and beards and to smoke cigarettes, acts forbidden by their religion, amounted to a war crime.[10] It should also be noted that the Elements of Crimes for the International Criminal Court, in the context of the war crime of “outrages upon personal dignity”, specifies that this crime takes into account relevant aspects of the cultural background of the victim.[11] This was inserted in order to include, as a war crime, forcing persons to act against their religious beliefs.[12]
The International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the regional human rights treaties provide that everyone has the right to freedom of “thought, conscience and religion” or, alternatively, “conscience and religion”.[13] These treaties also provide for the right to manifest one’s religion and beliefs, subject only to limitations prescribed by law which are necessary to protect public safety, order, health, morals or the rights and freedoms of others.[14] The above-mentioned rights are specifically listed as non-derogable in the International Covenant on Civil and Political Rights and the American Convention on Human Rights,[15] while the Convention on the Rights of the Child and the African Charter on Human and Peoples’ Rights do not allow for the possibility of derogations. The right to freedom of thought, conscience and religion, to manifest one’s religion or beliefs and to change religion or belief is also set forth in other international instruments.[16]
The right to respect for religious or other personal convictions of persons is not subject to limitations, unlike their manifestation as explained further below. Humanitarian law treaties stress the requirement to respect the religion of protected persons. The International Covenant on Civil and Political Rights and the European and American Conventions on Human Rights specifically provide that the right to freedom of thought, conscience and religion includes the right of free choice of a religion or belief.[17] Subjecting a person to coercion which would impair this right is explicitly prohibited under the International Covenant on Civil and Political Rights and the American Convention on Human Rights.[18] In its General Comment on Article 18 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee stated that the prohibition of coercion protects the right to change one’s belief, to maintain the same belief or to adopt atheistic views. It added that policies or practices having the same intention or effect, such as, for example, those restricting access to medical care, education or employment, would violate this rule.[19] The same point was made by the European Court of Human Rights and by the African Commission on Human and Peoples’ Rights, which also stressed the importance of respecting secular views.[20]
Any form of persecution, harassment or discrimination because of a person’s convictions, religious or non-religious, would violate this rule. The Inter-American Commission on Human Rights, in its report on terrorism and human rights, stated that laws, methods of investigation and prosecution must not be purposefully designed or implemented in a way that distinguishes to their detriment members of a group based on, inter alia, their religion.[21]
The manifestation of personal convictions or the practice of one’s religion must also be respected. This includes, for example, access to places of worship and access to religious personnel.[22] Limitations are only permitted if needed for order, security or the rights and freedoms of others. As stated in the commentary to Rule 127, the practice of detainees’ religion may be subject to military regulations. However, the limitations on such practice may only be those that are reasonable and necessary in the specific context. In its General Comment on Article 18 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee stated that limitations must be directly related and proportionate to the specific need, and that limitations applied for the protection of morals must not derive exclusively from a single tradition. It added that persons under legal constraints, such as prisoners, continue to enjoy their right to manifest their religion or belief “to the fullest extent compatible with the specific nature of the constraint”.[23]
[1] Lieber Code, Article 37 (cited in Vol. II, Ch. 32, § 3830); Brussels Declaration, Article 38 (ibid., § 3831); Oxford Manual, Article 49 (ibid., § 3832).
[2] Hague Regulations, Article 46 (ibid., § 3818).
[3] Fourth Geneva Convention, Article 27, first paragraph (ibid., § 3819), Article 38, third paragraph (ibid., § 3821) and Article 58 (ibid., § 3821).
[4] First Geneva Convention, Article 17, third paragraph (burial of the dead according to the rites of the religion to which they belong if possible); Third Geneva Convention, Articles 34–36 (religious activities of prisoners of war), Article 120, fourth paragraph (burial of prisoners of war deceased in captivity according to the rites of the religion to which they belonged if possible) and fifth paragraph (cremation of deceased prisoners of war on account of the religion of the deceased); Fourth Geneva Convention, Article 50, third paragraph (education of children who are orphaned or separated from their parents as a result of the war by persons of their own religion if possible), Article 76, third paragraph (spiritual assistance for persons detained in occupied territory), Article 86 (religious services for interned persons), Article 93 (religious activities of interned persons) and Article 130, first paragraph (burial of deceased internees according to the rites of the religion to which they belonged if possible) and second paragraph (cremation of deceased internees on account of the religion of the deceased).
[5] Additional Protocol I, Article 75(1) (adopted by consensus) (cited in Vol. II, Ch. 32, § 3825); Additional Protocol II, Article 4(1) (adopted by consensus) (ibid., § 3826).
[6] See the military manuals of Argentina (ibid., §§ 3840–3841), Australia (ibid., § 3842), Canada (ibid., §§ 3843–3844), Colombia (ibid., §§ 3845–3846), Dominican Republic (ibid., § 3847), Ecuador (ibid., § 3848), France (ibid., §§ 3849–3851), Germany (ibid., § 3852), Hungary (ibid., § 3853), Indonesia (ibid., § 3854), Italy (ibid., § 3855), Kenya (ibid., § 3856), Madagascar (ibid., § 3857), New Zealand (ibid., § 3858), Nicaragua (ibid., § 3859), Romania (ibid., § 3860), Spain (ibid., § 3861), Sweden (ibid., § 3862), Switzerland (ibid., § 3863), United Kingdom (ibid., §§ 3864–3865) and United States (ibid., §§ 3867–3869).
[7] See, e.g., the legislation of Bangladesh (ibid., § 3871), Bosnia and Herzegovina (ibid., § 3872), Croatia (ibid., § 3873), Ethiopia (ibid., § 3874), Ireland (ibid., § 3875), Lithuania (ibid., § 3876), Myanmar (ibid., § 3877), Norway (ibid., § 3878), Slovenia (ibid., § 3879) and Yugoslavia (ibid., §§ 3880–3881).
[8] See, e.g., the military manuals of France (ibid., § 3849), Indonesia (ibid., § 3854), Kenya (ibid., § 3856) and United Kingdom (ibid., § 3865) and the legislation of Myanmar (ibid., § 3877).
[9] Netherlands, Special Court of Cassation, Zühlke case (ibid., § 3882).
[10] Australia, Military Court at Rabaul, Tanaka Chuichi case (ibid., § 3883).
[11] See Elements of Crimes for the ICC, Definition of outrages upon personal dignity as a war crime (ICC Statute, Footnote 49 relating to Article 8(2)(b)(xxi) and Footnote 57 relating to Article 8(2)(c)(ii)).
[12] See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, Commentary on Article 8(2)(b)(xxi) of the ICC Statute, p. 315.
[13] International Covenant on Civil and Political Rights, Article 18(1) (cited in Vol. II, Ch. 32, § 3823); Convention on the Rights of the Child, Article 14(1) (ibid., § 3828); European Convention on Human Rights, Article 9(1) (ibid., § 3822); American Convention on Human Rights, Article 12(1) (ibid., § 3824); African Charter on Human and Peoples’ Rights, Article 8 (ibid., § 3827).
[14] International Covenant on Civil and Political Rights, Article 18(3) (ibid., § 3823); Convention on the Rights of the Child, Article 14(3) (ibid., § 3828); European Convention on Human Rights, Article 9(2) (ibid., § 3822); American Convention on Human Rights, Article 12(3) (ibid., § 3824); African Charter on Human and Peoples’ Rights, Article 8 (ibid., § 3827).
[15] International Covenant on Civil and Political Rights, Article 4(2) (ibid., § 3823); American Convention on Human Rights, Article 27(2) (ibid., § 3824); see also UN Human Rights Committee, General Comment No. 22 (Article 18 of the International Covenant on Civil and Political Rights) (ibid., § 3892); Inter-American Commission on Human Rights, Resolution concerning the law applicable to emergency situations (ibid., § 3896).
[16] See, e.g., Universal Declaration on Human Rights, Article 18 (ibid., § 3833); American Declaration on the Rights and Duties of Man, Article III (limited to freedom of religion) (ibid., § 3834); Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, Article 1 (ibid., § 3835); EU Charter of Fundamental Rights, Article 10 (ibid., § 3839).
[17] International Covenant on Civil and Political Rights, Article 18(1) (ibid., § 3823); European Convention on Human Rights, Article 9(1) (freedom to change religion or belief) (ibid., § 3822); American Convention on Human Rights, Article 12(1) (ibid., § 3824).
[18] International Covenant on Civil and Political Rights, Article 18(2) (ibid., § 3823); American Convention on Human Rights, Article 12(2) (ibid., § 3824).
[19] UN Human Rights Committee, General Comment No. 22 (Article 18 of the International Covenant on Civil and Political Rights), 30 July 1993, § 5.
[20] European Court of Human Rights, Kokkinakis v. Greece (cited in Vol. II, Ch. 32, § 3894); African Commission on Human and Peoples’ Rights, Association of Members of the Episcopal Conference of East Africa v. Sudan (ibid., § 3893).
[21] Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, 22 October 2002, Doc. OEA/Ser.L/V/II.116, Doc. 5, rev. 1, corr, § 363.
[22] See, e.g., European Court of Human Rights, Cyprus case (cited in Vol. II, Ch. 32, § 3895); Netherlands, Special Court of Cassation, Zühlke case (ibid., § 3882); ICRC Press release (ibid., § 3899); see also practice referred to in the commentary to Rule 127.
[23] UN Human Rights Committee, General Comment No. 22 (Article 18 of the International Covenant on Civil and Political Rights), 30 July 1993, § 8.