United States of America
Practice Relating to Rule 104. Respect for Convictions and Religious Practices
The US Field Manual (1956) reproduces Articles 27, 38, third paragraph, and 58 of the 1949 Geneva Convention IV. It also uses the same wording as Article 46 of the 1907 Hague Regulations.
The US Air Force Pamphlet (1976) recalls that the 1949 Geneva Convention IV contains provisions on the treatment of protected persons, including “to respect … religious customs”.
The Pamphlet adds that protected persons in the territory of a belligerent “in any case, are entitled … to practice their religion”.
The Pamphlet refers to Article 46 of the 1907 Hague Regulations and provides for respect for “religious convictions and practices”.
The US Soldier’s Manual (1984) instructs soldiers: “However different or unusual a foreign land may seem to you, remember to respect its people and their honor, family rights, religious beliefs, and customs.”
The US Naval Handbook (1995) provides that “[t]he following acts are representative war crimes: … infringement of religious rights” of civilian inhabitants of occupied territory.
The US Intelligence Reform and Terrorism Prevention Act (2004), states in Title V—Border Protection, Immigration and Visa Matters; Subtitle E—Treatment of Aliens Who Commit Acts of Torture, Extrajudicial Killings or Other Atrocities Abroad:
§ 5502. Inadmissibility and Deportability of Foreign Government Officials Who have Committed Particularly Severe Violations of Religious Freedom.
(a) GROUND OF INADMISSIBILITY.—Section 212(a)(2)(G) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(G)) is amended to read as follows:
“(G) FOREIGN GOVERNMENT OFFICIALS WHO HAVE COMMITTED PARTICULARLY SEVERE VIOLATIONS OF RELIGIOUS FREEDOM.—Any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom, as defined in section 3 of the International Religious Freedom Act of 1998 (22 U.S.C. 6402), is inadmissible.”
(b) GROUND OF DEPORTABILITY.—Section 237(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)) is amended by adding at the end the following:
“(E) PARTICIPATED IN THE COMMISSION OF SEVERE VIOLATIONS OF RELIGIOUS FREEDOM.—Any alien described in section 212(a)(2)(G) is deportable.”
In July 2007, and in accordance with section 6(a)(3) of the US Military Commissions Act (2006), the US President issued an Executive Order which stated that a “Program of Detention and Interrogation Operated by the Central Intelligence Agency” complied with US obligations under common Article 3 of the 1949 Geneva Conventions. The Executive Order stated in part:
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3.
(a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual.
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris
of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional protocol II].”
In February 2008, in a statement on the US Department of Justice’s legal review of the Central Intelligence Agency (CIA) programme of detention and interrogation before the House Committee on the Judiciary Sub-Committee on the Constitution, Civil Rights, and Civil Liberties, the Principal Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, stated:
The CIA program is now operated in accordance with the President’s executive order of July 20th, 2007, which was issued pursuant to the Military Commissions Act . The President’s executive order requires that the CIA program comply with a host of substantive and procedural requirements.
… All detainees in the program must be afforded the basic necessities of life … and their treatment must be free of religious denigration … The Director of the CIA must have rules and procedures in place to ensure compliance with the executive order.