Rule 127. The personal convictions and religious practices of persons deprived of their liberty must be respected.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule is an application of the fundamental guarantee of respect for convictions and religious practices (see Rule 104).
The recognition of the freedom of prisoners of war to exercise their religion was first codified in the Hague Regulations.[1] The Third Geneva Convention governing prisoners of war and the Fourth Geneva Convention governing civilians now regulate this subject in detail.[2] Additional Protocol I also requires respect for the convictions and religious practices of detainees.[3]
The right of detainees to respect for their religious convictions and practices is set forth in numerous military manuals.[4] It is also contained in the legislation of several States.[5]
In the Aleksovski case, the International Criminal Tribunal for the former Yugoslavia found the accused not guilty of prohibiting detainees from practicing their faith because “it was not established that the difficulties encountered by the detainees in respect of the observance of religious rites resulted from any deliberate policy of the accused”.[6]
Article 5 of Additional Protocol II requires that persons whose liberty has been restricted be allowed to practise their religion and, if requested and appropriate, to receive spiritual assistance.[7] Article 4 of Additional Protocol II also requires respect for detainees’ convictions and religious practices.[8] In his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General qualified violations of Article 4 of Additional Protocol II as violations of customary international law.[9]
Several military manuals which are applicable in or have been applied in non-international armed conflicts specify the right of detainees to practise their religion and to receive spiritual assistance.[10] This right is also set forth in the legislation of some States.[11]
No official contrary practice was found with respect to either international or non-international armed conflicts.
Practice indicates that the manifestation of personal convictions, the practice of one’s religion and access to spiritual assistance may be subject to reasonable regulation. Article 18 of the Hague Regulations and Article 34 of the Third Geneva Convention provide that prisoners of war are entitled to practise their religion provided that they comply with military regulations for order and discipline.[12] Similarly, with respect to civilian internees, the Fourth Geneva Convention provides that they shall enjoy complete latitude in the exercise of their religion “on condition that they comply with the disciplinary routine prescribed by the detaining authorities”.[13] Furthermore, the Third and Fourth Geneva Conventions require that religious personnel who are retained or interned be allowed to correspond, subject to censorship, on matters concerning their religious duties.[14]
[1] Hague Regulations, Article 18 (cited in Vol. II, Ch. 37, § 550).
[2] Third Geneva Convention, Article 34 (ibid., §§ 552–553) and Article 35 (ibid., § 554); Fourth Geneva Convention, Article 76 (ibid., § 555), Article 86 (ibid., § 553) and Article 93 (ibid., §§ 552–554).
[3] Additional Protocol I, Article 75(1) (adopted by consensus) (cited in Vol. II, Ch. 32, § 368).
[4] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 37, §§ 561–562), Australia (ibid., § 563), Benin (ibid., § 564), Canada (ibid., § 565), Colombia (ibid., § 566), Ecuador (ibid., § 567), Germany (ibid., § 568), Israel (ibid., § 569), Italy (ibid., § 570), Madagascar (ibid., § 571), Netherlands (ibid., § 572), New Zealand (ibid., § 573), Nicaragua (ibid., § 574), Nigeria (ibid., § 575), Romania (ibid., § 576), Senegal (ibid., § 577), Spain (ibid., § 578), Switzerland (ibid., § 579), Togo (ibid., § 580), United Kingdom (ibid., §§ 581–582) and United States (ibid., §§ 583–586).
[5] See, e.g., the legislation of Azerbaijan (ibid., § 587), Bangladesh (ibid., § 588), Ireland (ibid., § 589), Italy (ibid., § 590) and Norway (ibid., § 591).
[6] ICTY, Aleksovski case, Judgment (ibid., § 599).
[7] Additional Protocol II, Article 5(1)(d) (adopted by consensus) (ibid., § 557).
[8] Additional Protocol II, Article 4(1) (adopted by consensus) (ibid., § 556).
[9] UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone (ibid., § 596).
[10] See, e.g., the military manuals of Benin (ibid., § 564), Canada (ibid., § 565), Colombia (ibid., § 566), Ecuador (ibid., § 567), Germany (ibid., § 568), Italy (ibid., § 570), Madagascar (ibid., § 571), Netherlands (ibid., § 572), New Zealand (ibid., § 573), Nicaragua (ibid., § 574), Senegal (ibid., § 577) and Togo (ibid., § 580).
[11] See, e.g., the legislation of Azerbaijan (ibid., § 587).
[12] Hague Regulations, Article 18 (ibid., § 551); Third Geneva Convention, Article 34 (ibid., § 552).
[13] Fourth Geneva Convention, Article 93 (ibid., § 552).
[14] Third Geneva Convention, Article 35 (ibid., §554); Fourth Geneva Convention, Article 93 (ibid., § 554).