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Freedom of Religion or Belief - An International Law Commentary by Bielefeldt, Heiner; Ghanea, Nazila; Wiener, Michael (21st January 2016)

Part 2 Discrimination, 2.1 Discrimination on the Basis of Religion or Belief/Interreligious Discrimination/Tolerance

From: Freedom of Religion or Belief: An International Law Commentary

Heiner Bielefeldt, Nazila Ghanea, Michael Wiener

Subject(s):
Religion — Freedom of association — Freedom of expression — Freedom of thought, conscience, and religion — Minorities — Human rights remedies — Refugees

(p. 309) 2.1.  Discrimination on the Basis of Religion or Belief/Interreligious Discrimination/Tolerance

  1. I.  International Standards 309

  2. II.  Introduction 311

  3. III.  Historical Background 312

  4. IV.  Mandate Practice of UN Special Procedures and Treaty Bodies 315

    1. 1.  Discrimination Committed by States, de facto Authorities, and Societal Non-State Actors 315

    2. 2.  Intersectional Discrimination 320

    3. 3.  Direct and Indirect Discrimination 321

    4. 4.  Differential Treatment for Equality 323

    5. 5.  The Role of Reasonable Accommodation 324

  5. V.  Issues of Interpretation 329

    1. 1.  Extremism, Discrimination, and Intolerance 329

    2. 2.  Practical Measures to Combat Societal Discrimination and Religious Intolerance 334

    3. 3.  More Credibility through State ‘Neutrality’? 336

I.  International Standards

  • ICCPR

  • Article 2(1): ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as […] religion […].’

  • Article 5(1): ‘Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.’

  • Article 26: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as […] religion […].’

  • Article 27: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’

  • ICERD

  • Article 5: ‘[…] States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: […] (d) Other civil rights, in particular: […] (vii) The right to freedom of thought, conscience and religion.’

  • ICESCR

  • Article 2(2): ‘The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind such as […] religion […].’

  • (p. 310) CRC

  • Article 30: ‘In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.’

  • 1981 Declaration of the General Assembly

  • Article 2(1): ‘No one shall be subject to discrimination by any State, institution, group of persons or person on the grounds of religion or belief.’

  • Article 2(2): ‘For the purposes of the present Declaration, the expression “intolerance and discrimination based on religion or belief” means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.’

  • Article 3: ‘Discrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations.’

  • Article 4(1): ‘All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.’

  • Article 4(2): ‘All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or belief in this matter.’

  • Commission on Human Rights resolution 2005/40

  • Para 4(g): The Commission on Human Rights urges States ‘[t]o ensure that all public officials and civil servants, including members of law enforcement bodies, the military and educators, in the course of their official duties, respect different religions and beliefs and do not discriminate on the grounds of religion or belief, and that all necessary and appropriate education or training is provided’.

  • Para 7: The Commission on Human Rights ‘[e]xpresses concern at the persistence of institutionalized social intolerance and discrimination practised in the name of religion or belief against many communities’.

  • Para 8: The Commission on Human Rights urges States to step up their efforts to eliminate intolerance and discrimination based on religion or belief, notably by: ‘(a) Taking all necessary and appropriate action, in conformity with international standards of human rights, to combat hatred, intolerance and acts of violence, intimidation and coercion motivated by intolerance based on religion or belief, with particular regard to religious minorities, and also to devote particular attention to practices that violate the human rights of women and discriminate against women, including in the exercise of their right to freedom of thought, conscience, religion or belief; (b) Promoting and encouraging, through education and other means, understanding, tolerance and respect in all matters relating to freedom of religion or belief; (c) Making all appropriate efforts to encourage those engaged in teaching to cultivate respect for all religions or beliefs, thereby promoting mutual understanding and tolerance’.

  • Para 9: The Commission on Human Rights, ‘[r]ecognizes that the exercise of tolerance and non-discrimination by all actors in society is necessary for the full realization of the aims of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and invites Governments, religious bodies and civil society to continue to undertake dialogue at all levels to promote greater tolerance, respect and understanding’.

  • (p. 311) Para 10: The Commission on Human Rights, ‘[e]mphasizes the importance of a continued and strengthened dialogue among and within religions or beliefs, encompassed by the dialogue among civilizations, to promote greater tolerance, respect and mutual understanding’.

  • Human Rights Committee general comment no. 22

  • Para 2: ‘The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.’

II.  Introduction

While it is a truism to say that freedom of religion or belief is a right to freedom—evident from its very title—it is also a right to equality. As foundational principles and fundamental components1 of human rights, freedom and equality are closely intertwined, and they should usually be seen as two sides of the same coin. Without taking account of equality, rights of freedom would amount to the privileges of the happy few and without regard to freedom, the principle of equality could lead to uniformity or ‘sameness’, a misunderstanding already present in Edmund Burke’s polemics against the French Revolution.2 However, human rights empower human beings—on the basis of equal respect for everyone—to pursue their own freely chosen life plans, to enjoy respect for their unique personal biographies, to freely express their diverse political opinions, or to freely manifest their different faith-based convictions and practices.3 Instead of leading to an impoverished and bland uniformity, working for an equal implementation of human rights for everyone makes societies more diverse and more pluralistic. In the framework of human rights, equality can only be a diversity-friendly equality, and this is the opposite of sameness. The Council of Europe was, therefore, well advised to launch a pro-diversity campaign under the motto ‘all different, all equal’.4

The right to freedom of religion or belief is a clear example of such a call for an equal implementation of human rights for all. Not only does freedom of religion or belief prohibit undue infringements into a person’s religious freedom; it also prohibits discrimination— i.e. the denial of equality—in this arena.5 Indeed, ‘religion’ always figures among the explicitly listed grounds of prohibited distinctions set out in virtually all major human rights documents. In this context it is interesting to note that the terms ‘thought’ and ‘conscience’ are not listed as grounds, and the term ‘belief’ is only rarely mentioned explicitly.

Religious discrimination can be very straightforward. For instance, while using criminal law provisions to shield a hegemonic religion against proselytism, some Governments openly encourage conversion away from minority religions to the state or majority religion, and this offers a clear case of direct religious discrimination. This practice is (p. 312) widespread in a number of Muslim countries, many of which give Islam a privileged status,6 but it also exists with the purpose of protecting other religions (Buddhism, Christianity, or Hinduism) against unwelcome ‘competitors’. Some States impose burdensome registration procedures on minorities or new religious communities while exempting so-called ‘traditional’ or ‘national’ religions from such requirements.7 Higher political and administrative posts often remain reserved to members of the State’s official religion, and in many countries official religions also receive a preferential treatment in school curricula, public media representation, or in the provision of chaplain services within the military or the police forces. All of this happens within the most diverse religious or ideological landscapes.8

The common consequence of preferential treatment of official or national religions is State-induced direct discrimination against those not following the dominant belief system. Groups that are disproportionately affected by discriminatory practices include Ahmadis, Bahá’ís, Jehovah’s Witnesses, and Sufis, and in many regions also atheists or agnostics. Direct discrimination can also emerge from non-State actors such as private companies, some of which have a policy of excluding members of minority religions or atheists from employment or services. Sometimes State and non-State actors join forces to keep religious minorities, critics, or dissenters at the margins of society. This can even include acts of violence perpetrated in an atmosphere of impunity.

Despite religious discrimination being described as ‘one of the oldest forms of discrimination’,9 the understanding of discrimination has deepened in recent decades and has moved beyond the more visible types of discrimination on the grounds of the religion or belief of the victim(s) and discrimination stemming from State agents.10 Apart from this ongoing need to tackle direct and open manifestations of discrimination, human rights is pushing for a more sensitive approach to less visible forms of discrimination, such as indirect and structural discrimination in various sectors of the society, including in relation to freedom of religion or belief.

The 1981 Declaration jointly addresses religious intolerance and discrimination on the basis of religion or belief as closely related phenomena. Accordingly, this chapter also deals with extreme forms of intolerance, as epitomized through acts in particular by groups of religious extremists, including violent extremists.

III.  Historical Background

International human rights instruments categorically insist upon non-discrimination on the grounds of religion (or belief). The principle of non-discrimination, in fact, (p. 313) ‘is generally perceived as one of the most important in the field of human rights; it is overarching and therefore applies to all human rights, including the right to freedom of religion or belief’.11 This is clear from the language of the UN Charter itself and it is further reiterated in the UDHR. The UN Charter’s article 1(3) holds one of the purposes of the United Nations to be the promotion and encouragement of ‘respect for human rights and for fundamental freedoms for all without distinction’ inter alia on the basis of religion. Entitlement to all the rights and freedoms of the UDHR is also without distinction of any kind, such as religion, as outlined in its article 2. This emphasis continued with the resolution of the UN General Assembly of 1960, which expressed concern regarding instances of religious and racial discrimination not being ‘sufficiently combatted’,12 calling upon ‘the Governments of all States to take all necessary measures to prevent all manifestations of racial, religious and national hatred’13 and condemning all such manifestations and practices.

The coming into force of the Twin Covenants saw a further deepening of the concern with discrimination on the grounds of religion or belief. The ICESCR upholds in article 2(2) that ‘[t]he States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind’ such as religion. General comment no. 20 on this article also insists that non-discrimination is ‘an immediate and cross-cutting obligation in the Covenant’.14 The ICCPR uses the term ‘ensure’ rather than ‘guarantee’ and emphasizes ‘no distinction of any kind’ in article 2(1) that ‘(e)ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind’ such as religion.15 Article 26, the ICCPR’s standalone non-discrimination provision, elaborates this as follows: ‘[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as […] religion’.

Non-discrimination on the basis of religion or belief is replicated in numerous other instruments too, including article 5 of the International Convention on the Elimination of all Forms of Racial Discrimination.16

Further to the 1960 General Assembly resolution, it took the international community twenty-one years to finally deliver an international instrument exclusively addressing religious issues, but when it did so discrimination on grounds of religion or belief proved its central concern. Even the title of the ‘Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief’ was telling of its focus. (p. 314) ‘Non-discrimination’ on the basis of religion is repeated throughout ten times and ‘without distinction’ once. Preambular paragraph one recognizes that States have, indeed, already ‘pledged themselves to take joint and separate action […] to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all without distinction’,17 inter alia on the basis of religion. The preamble also recalls the original genesis of the 1981 Declaration, the concern of the 1960 General Assembly resolution about manifestation of discrimination in matters of religion or belief, and the need to eliminate, prevent, and combat such intolerance.

The 1981 Declaration also provides us with the only definition in international human rights instruments of non-discrimination on the basis of religion or belief. This is captured in article 2(2), according to which ‘the expression “intolerance and discrimination based on religion or belief” means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.’18 The impetus for the ‘distinction, exclusion, restriction or preference’ may be grounded in the sense of superiority of the perpetrator,19 or the religion or belief violation may be based on broader or intersectional prejudices regarding the victim. Such discrimination may be perpetrated by State or non-State actors. The determination of ‘intolerance and discrimination based on religion or belief’ can further be made regardless of the motive of the State or non-State perpetrator. Article 3 of the 1981 Declaration traces the emergence of the principle of non-discrimination on the basis of religion or belief and outlines its significance. ‘Discrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations.’20

In recognition of the significance of non-discrimination on the basis of religion or belief, we should note that, as specified in article 4(2) of the ICCPR, article 18 is not subject to derogation in times of public emergency.21 Furthermore, article 4(1) specifically recognizes that State Parties can only derogate from relevant ICCPR provisions—at a time of public emergency which ‘threatens the life of the nation’ if it is officially proclaimed, to the extent strictly required—‘provided that such measures […] do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’.22

(p. 315) IV.  Mandate Practice of UN Special Procedures and Treaty Bodies

1.  Discrimination Committed by States, de facto Authorities, and Societal Non-State Actors

Discrimination on the basis of religion or belief may result from State restrictions, exclusions, or limitations of rights,23 or the actions of various non-State actors. Recognizing that both State and non-State actions can lead to discrimination, however, is not the same as inferring an equivalence of power or responsibility between them. They are not equivalent and—as general comment no. 20 of the Committee on Economic, Social and Cultural Rights observes—there is a primary role for the State in addressing discrimination and, to start with, in ‘ensuring that a State’s constitution, laws and policy documents do not discriminate on prohibited grounds’,24 in this case religion or belief. While the overarching State responsibility remains uncompromised (see below (a)), the problem of discrimination committed by de facto authorities has become a subject of growing concern (see below (b)), and more attention has also been given in recent decades to the significance of societal discrimination (see below (c)).

(a)  State-imposed discrimination

The vast majority of the cases raised by the Special Procedures and Treaty Bodies relate to State restrictions on freedom of religion or belief and related discrimination. This type of ‘vertical discrimination’ is carried out by State agents targeting individual(s) on grounds of their religion or belief, or is discrimination that results from State agents acting in the name of a particular religion, thus discriminating against those not following that hegemonic faith.

When the Commission on Human Rights appointed a Special Rapporteur on Religious Intolerance in 1986, the resolution creating the mandate explicitly highlighted the role of the State in relation to discrimination. The Commission on Human Rights, in its resolution 1986/20, expressed serious concern about ‘frequent, reliable reports from all parts of the world which reveal’ that the 1981 Declaration is not being implemented ‘because of governmental actions’.25 This is reinforced in the operative part of the resolution expressing deep concern about ‘reports of incidents and governmental actions in all parts of the world’26 which are inconsistent with the 1981 Declaration. When recognizing ‘the value of constructive dialogue on the complex and serious questions of intolerance and of discrimination based on religion or belief’,27 the resolution mandates the Special Rapporteur to examine such incidents and ‘to recommend remedial measures, including, as appropriate, the promotion of a dialogue between communities of religion or belief and their Governments’.28 Even in relation to dialogue between communities of religion or belief, therefore, the resolution returned the question squarely to the State actors.

(p. 316) Seven years later, general comment no. 22 of the Human Rights Committee was again almost totally State-centred in the issues it raised in relation to discrimination. In discussing education, it focuses on instruction in public schools.29 It does, however, balance this with the liberty of parents or legal guardians.30 Even in discussing coercion, which arguably often draws on non-State actors in its perpetuation, the discussion largely centres on States, specifically referring to education, medical care, and employment.31

The 1981 Declaration again focuses on the State when demanding that all States should ‘make all efforts to enact or rescind legislation where necessary to prohibit’ such discrimination and ‘to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter’.32 Discrimination in law should lead to the State ‘amending or repealing the discriminatory legislation’ as soon as possible; and discrimination in practice should lead the State to ‘immediately adopt measures that are likely to lead to its elimination as soon as possible’.33

Legislation plays an important role in guaranteeing freedom of religion or belief to all, in protecting everyone from violations, and in fulfilling enjoyment of this right, notably without discrimination. The Human Rights Committee and the Special Rapporteurs on freedom of religion or belief repeatedly called for the adoption of new laws or amendments in line with international standards, the clarification of definitions in legal provisions, the implementation of freedom of religion or belief standards and equal treatment, and the adoption of constitutional amendments. They have clarified that—even when a (discriminatory) distinction is enshrined in the Constitution of a State—this mere fact does not render such a distinction reasonable and objective.34

De jure discrimination, i.e. discrimination enshrined in laws, is often combined with de facto discrimination, i.e. discrimination resulting from the effect of laws, policies, and practices. Discrimination enshrined in the law may be tantamount to unequal citizenship35 and adversely affect free movement, choice of employment, participation in public life, the eligibility to hold high posts or ‘sensitive posts’, the right to marry, the possibility of obtaining ID cards, access to education, equal enjoyment with regards to family life, divorce, custody, and inheritance for millions around the world.36 Policies or practices affect the enjoyment of numerous rights too and, either alone or in combination with de jure discrimination, lead to extensive discrimination.

(p. 317) The impact of State-induced discrimination on the enjoyment of rights can be profound. One such impact is that of discrimination being utilized as the means of coercion on the freedom to have, adopt, or change religion or belief. The Human Rights Committee observes that article 18(2) of the ICCPR ‘bars coercion that would impair the right to have or adopt a religion or belief’, and that these include physical threats and penal sanctions aimed at compelling believers or non-believers to adhere, recant or convert. Other policies and practices which have ‘the same intention or effect’, such as those in the economic and social field, are also inconsistent with freedom of religion or belief.37

A further area in which discrimination may arise is in relation to limitations to manifestation of religion or belief imposed by the State. The Human Rights Committee specifically recognizes the risk of limitations on the manifestation of freedom of religion or belief themselves proving discriminatory.38 The Committee therefore insists that ‘[i]n interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination on all grounds specified in articles 2, 3 and 26.’39 As a further protection from discriminatory consequences, the Human Rights Committee adds a proviso to limitations imposed on the grounds of morality, ‘that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition’.40 All these serve to underscore the significance and the risks of discrimination.

Examples of violations by States—in relation to what he called violations of the principle of non-discrimination in religion or belief—were outlined by Special Rapporteur Amor in his 1996 report on communications. These violations included those against Christians and Shiites in Saudi Arabia; non-Muslims in Brunei Darussalam and Maldives; Christians in the Lao People’s Democratic Republic; and Christians and Muslims in Israel. They also included discrimination against Jehovah’s Witnesses in Eritrea for religious expression; the refusal to grant official recognition to the Evangelical Alliance and many other groups in Bulgaria; bans against the Bahá’ís, Darul Arqam, and Jehovah’s Witnesses in Indonesia and against the Al Arqam group in Malaysia, and against Jehovah’s Witnesses and the Unification Church in Singapore.41

Special Rapporteur Jahangir focused her thematic report to the Human Rights Council in 2009 on the topic of discrimination based on religion or belief and its impact on the enjoyment of economic, social, and cultural rights. In this context, she provided numerous examples from the mandate practice of Special Procedures and Treaty Bodies concerning the rights to work,42 to an adequate standard of living,43 to the highest (p. 318) attainable standard of physical and mental health,44 to education,45 and to take part in cultural life.46 Recalling that all human rights are universal, indivisible, interdependent, and interrelated, Special Rapporteur Jahangir advocated for addressing discrimination affecting the enjoyment of civil and political rights as well as of economic, social, and cultural rights. With reference to general comments of the Committee on Economic, Social and Cultural Rights, she stressed that the principle of non-discrimination in the enjoyment of the rights guaranteed by the ICESCR ‘is not subject to the rule of the progressive realization of rights or to the availability of resources’ but rather ‘is immediately and fully applicable to all the rights guaranteed by the Covenant and encompasses all internationally prohibited grounds of discrimination.’47

In responding to the challenge of discrimination, many States have adopted anti-discrimination legislation in the effort to act on the legislative obligations they have in this area. In fact, a number of jurisdictions have adopted comprehensive anti-discrimination legislation to deal with a range of discrimination/equality challenges in a single law.48 Whilst such laws may offer the advantage of recognizing the full spectrum of discriminations and seeking to respond to them in a balanced way, their early embedding sometimes leads to too easy a ‘trading’ or ‘balancing’ of grounds of discrimination. In crafting and applying such legislation, the core human rights protections should not be forgotten. It is not a zero-sum game between religion or belief and gender or sexual orientation, for example, that is at stake. Core human rights protections and rights guaranteed are at stake and they need careful attention and consideration. Context is often also highly informative and pertinent. State authorities should certainly fulfil the variety of obligations imposed on them to uphold the various areas of non-discrimination in the law effectively, but they should also be mindful to pursue the judicial process and its impact on claimants.

Where prevention—which Special Rapporteur Jahangir deemed ‘crucial’49—has failed, a key role of the State is to ensure that victims should be able to avail themselves of effective legal remedies.50

(b)  Discrimination perpetrated by de facto authorities

In some States, the Government has lost effective control over (part of) its territory and population. Thus de facto authorities or non-State armed groups may have consolidated (p. 319) their ‘control and authority over a territory to such an extent that [they] can exclude the State from governing the territory on a more than temporary basis’, as Special Rapporteur Bielefeldt defined the term ‘effective control’.51 In his mission reports, he urged for example the ‘authorities’ of the Transnistrian region of the Republic of Moldova to review practices leading to de facto discrimination against adherents of non-Orthodox religions or beliefs,52 and he recommended the de facto authorities in the northern part of Cyprus to revise the restrictions imposed on the accessibility of religious buildings, sites, or cemeteries.53 In 2001, Special Rapporteur Amor sent two urgent appeals to the supreme chief of the Taliban, asking him to halt the destruction of monuments and not to issue a discriminatory decree.54 Further reports by Special Procedures, Commissions of Inquiry, and the Office of the High Commissioner for Human Rights (OHCHR) refer to human rights violations committed in the name of religion by Hezbollah,55 Al-Shabaab,56 the self-proclaimed ‘Islamic State of Iraq and Al-Sham’,57 and Boko Haram.58

Such recommendations by international human rights mechanisms imply that certain non-State actors, due to the direct impact of their acts on rights-holders, actually also have human rights obligations, obviously alongside the State which remains a duty bearer too. This line of reasoning is a sea change in comparison to the traditional approach under international human rights law which tended to focus only on the obligations of States.59 Still in 2004, the Human Rights Committee argued that, ‘obligations are binding on States [parties] and do not, as such, have direct horizontal effect as a matter of international law’.60 In 2013, however, the Committee on the Elimination of Discrimination against Women stressed in its general recommendation no. 30 that ‘under certain circumstances, in particular where an armed group with an identifiable political structure exercises significant control over territory and population, non-State actors are obliged to respect international human rights’.61 Thus even Treaty Bodies, which by the very nature of their mandates have to monitor the implementation of human rights obligations by States parties, have started to recognize the importance and potential impact of certain non-State actors on everyone’s enjoyment of human rights without discrimination.

(p. 320) Special Rapporteur Bielefeldt noted that even armed groups without effective control over territory, for example the Lord’s Resistance Army, were held to have committed human rights violations.62 Furthermore, the United Nations Mission in the Republic of South Sudan stressed that ‘[t]he most basic human rights obligations, in particular those emanating from peremptory international law (ius cogens), bind both the State and armed opposition groups in times of peace and during armed conflict’, recommending the outcome of the peace talks to reflect human rights principles, including non-discrimination and the rights of victims to justice and reparations.63

(c)  Discrimination by societal non-State actors

Even at the outset, the role of State (or de facto authorities) on the one hand and non-State actors on the other cannot be strictly separated for a number of reasons. First, there is the question of the environment the State has created to facilitate or hinder enjoyment of freedom of religion or belief. This environment sets the tone for interreligious and religion-belief relationships. Secondly, there is the collaboration between State and non-State actors, which often takes place where there is a persistent pattern of discrimination on grounds of religion or belief. Thirdly, and in less overt instances, overturning an entrenched discrimination, even when continuing as social hostility rather than State exclusion, requires robust and positive State attention.

More recognition is also being given to the need for the State to engage with various non-State actors, including business companies, trade unions, influential cultural associations, private media, and educational institutions as well as religious or belief communities. The State should take an active role in providing an environment that does not lead to ‘distinction, exclusion, restriction or preference’ based on religion or belief and which results in the ‘nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis’.64

2.  Intersectional Discrimination

Special Rapporteur Amor called for strengthening protection against what he termed ‘aggravated discrimination’ in several of his reports, even calling for the strengthening of international protection through a resolution.65 This seems to have largely been triggered by his thinking during the preparatory committees and then attendance at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in 2001. In describing the uniqueness of the experience and phenomenon, he describes aggravated discrimination in very similar terms to those first raised by Kimberlé Crenshaw as ‘intersectional’ discrimination. Special Rapporteur Amor observed that ‘[w]hen the (p. 321) right to freedom of religion and the right to belong to an ethnic group or to a minority are infringed in the case of a single person or group of persons, the violation is not just a superimposition or ordinary addition of offences or discriminations. It is not just a question of multiple offences. The combination of the two offences creates a new, more serious, offence—an aggravated discrimination—which, while of varying intensity, is by its very nature a separate concept.’66 He also observed that the basis of the elements of religious discrimination aggravated by racial discrimination occurs with regularity. It is not covered by existing provisions as a separate phenomenon, nevertheless, aggravated discrimination can be theoretically dealt with by existing laws, rules, and principles.67 Amor also proposed strengthened measures for the anticipation of aggravated discrimination, the need for greater attention to it and its prevention,68 and better identification and penalties regarding aggravated discrimination.69

Multiple or intersectional forms of discrimination—for instance in the intersection of religion and gender—may lead to additional practical complications in anti-discrimination policies. The problem is that measures undertaken to combat religious discrimination may implicitly follow a male understanding of the needs and requirements of the respective communities, while programmes aimed at eliminating gender-related discrimination may in turn be largely shaped by the experiences of women stemming from the mainstream population. Even in States that pursue proactive policies of non-discrimination, there is a serious risk that women belonging to discriminated religious communities fail to benefit from any anti-discriminatory measures. Another kind of complex discrimination exists in the intersection of religious and ethnic minority status—with the result that religious and racist discrimination frequently overlap. There are also phenomena of discrimination in the intersection of religion/belief and disability, age, or sexual orientation. Such complex patterns deserve more careful attention, in order to avoid the danger that persons affected by intersectional discrimination remain excluded from anti-discrimination provisions.

3.  Direct and Indirect Discrimination

‘Direct’ discrimination, as defined by the Committee on Economic, Social and Cultural Rights, occurs ‘when an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited ground; e.g. where employment in educational or cultural institutions or membership of a trade union is based on the political opinions of applicants or employees. Direct discrimination also includes detrimental acts or omissions on the basis of prohibited grounds where there is no comparable similar situation (e.g. the case of a woman who is pregnant)’.70 Direct discrimination on the basis of religion or belief or in relation to freedom of religion or belief, would, for example, describe the prohibition on those who do not belong to the State religion to gain senior political posts, or a ban on wearing the kippa.

‘Indirect’ discrimination is sometimes more difficult to detect. Indirect discrimination refers to ‘laws, policies or practices which appear neutral at face value, but have a (p. 322) disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination. For instance, requiring a birth registration certificate for school enrolment may discriminate against ethnic minorities or non-nationals who do not possess, or have been denied, such certificates.’71 Another example of indirect discrimination is seemingly ‘neutral’ rules relating to dress codes in schools, other public institutions, or private companies. Although mostly not openly targeting a specific community, such rules can amount to discrimination against persons belonging to a religious minority, such as Sikhs or Muslims, if they feel religiously obliged to wear specific religious garments.72 Similar problems can occur with regard to dietary rules, public holidays, labour regulations, public health norms, and other issues.

Like direct discrimination, indirect discrimination, too, can originate from the State as well as from non-State actors. It may happen that those establishing rules or practices with indirectly discriminatory implications know precisely what they are doing and use such mechanisms on purpose. However, apart from such intentional forms of discrimination it may also be the case that large parts of the population are not even aware of the possibly discriminatory implications that prima facie ‘neutral’ rules may have on the rights of religious or belief minorities. Moreover, empirical research in a number of countries has revealed that members of religious minorities often confront additional barriers when trying to access important societal institutions, such as the education system, the media, or the health system—maybe due to an under-developed sensitivity for the special needs of persons belonging to minorities in such societal institutions. These are examples of structural discrimination. The various types of discrimination—direct, indirect, and structural—frequently overlap, and there can be manifestations of discrimination that do not easily fit into any of those categories.

Overcoming the various forms of discrimination in the field of religion or belief is a complex task, which the State—as formal guarantor of human rights—is obliged to tackle. First, it requires that the State open up its own institutions and services to (further) accommodating the existing religious pluralism on the basis of equality. The purpose is a consistent policy of non-discrimination within all State institutions, including accessibility of public positions in administration, public services, public schools, police force, military, and public health to everyone regardless of their diverse religious or belief orientations. At the same time, the State should combat discriminatory practices in society at large, including private labour and housing markets. If religious minorities suffer from a long history of exclusion, it may be necessary to adopt temporary special measures to encourage members of those minorities to apply for positions; this requires outreach and promotional activities that go beyond policies of formal non-discrimination. Finally, one also has to address the root causes of societal discrimination, such as stereotypes and prejudices against members of discriminated religious minorities, for example by providing fair information about different traditions as part of the school curriculum, facilitating encounters of people from different denominations, and encouraging interreligious communication.73

(p. 323) 4.  Differential Treatment for Equality

There has long been confusion between ‘non-discrimination’ and ‘equal treatment’, and international human rights law has long established that the two are not synonymous. As already elaborated in the introduction, ‘equality’ as a human rights principle can never mean mere sameness or uniformity; it must be conceptualized as a diversity-friendly equality. On top of that, fair and non-discriminatory treatment may still accommodate and at times even necessitate ‘different treatment’, depending on relevant circumstances.

The early Belgian Linguistics case made it clear that non-discrimination is not upheld merely with ‘identical treatment’. Here, in 1968, the European Court of Human Rights explained that:

[t]he principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.74

‘Differential treatment’, as in this case, is therefore in line with the Convention where it has objective and reasonable justification, pursues a legitimate aim, and where the means employed bear a reasonable relationship of proportionality with the aim being pursued.

While ‘differential treatment’ seems justifiable in some cases, as in the Belgian Linguistics case, there may even be situations which actively call for differential treatment. Thus Special Rapporteur Jahangir noted that enjoyment of rights and freedoms on an equal footing ‘does not mean identical treatment in every instance’.75 She furthermore recognized that when individuals or groups are treated in the same way despite their situations being different, discrimination may result. In the Belgian Linguistics case, the court recognized where differential treatment was acceptable. Here, Jahangir is highlighting instances where differential treatment is actually necessary. In such cases, different individuals and groups must be treated differently for non-discrimination to be upheld. She went on to emphasize human rights law’s understanding that ‘distinction, exclusion, restriction or preference’ may be necessary in terms of special temporary measures or affirmative action, ‘aiming at the elimination of conditions which cause or help to perpetuate discrimination, including on grounds of religion or belief’,76 and would amount to ‘legitimate differentiation’ (rather than discrimination in such contexts).

The focus of ‘differential treatment for equality’ in the latter understanding aims at achieving ‘substantive equality’.77 This notion recognizes that where the starting points are unequal then merely levelling the playing field cannot deliver substantive equality but would only lead to ‘formal equality’, i.e. equal treatment in relation to another individual (p. 324) or group. However, such formal equality, ‘while important, is often radically inadequate to achieve equal enjoyment […] because of significant historically determined differences’.78 By contrast, ‘substantive equality’ focuses on facilitating the actual enjoyment on an equal basis with others. It recognizes that positive measures—for example preferential treatment or affirmative action—may be required for ‘racial and ethnic minorities, women, persons from scheduled and lower castes, and persons with disabilities—to combat the constraining effects of socially construed circumstances.’79 While this list did not explicitly mention members of religious minorities, they too may need such positive measures. There is ‘not just a duty on the public authority to eliminate discrimination from its activities’ but also an active duty to ‘act positively to promote equality of opportunity and good relations between different groups throughout all its policy-making and in carrying out all its activities’.80

5.  The Role of Reasonable Accommodation

(a)  Towards a complex conceptualization of equality

What makes the fight for equality and non-discrimination in the area of religion particularly complicated is the experience that religious or belief communities—atheists, Bahá’ís, Buddhists, Christians, Hindus, Jews, Mormons, Muslims, Shinto, Sikhs, Taoists, and others—have very diverse needs and demands. They follow different liturgical calendars, they prescribe different dietary rules, and they may know different forms of religious self-organization.

Even in societies, which generally recognize religious diversity some problems may be difficult to resolve. One example is public holidays. From a strictly egalitarian standpoint, one could hypothetically demand that the State either abolish all public holidays relating to particular liturgical calendars or enlarge the list of public holidays by taking on board festivities of all religions and beliefs that happen to exist in the country, which in practice would be impossible. Although only few people would draw such radical consequences, the problem remains that even in a society committed to freedom of religion or belief some public approaches will most likely reflect the country’s dominant traditions, with possibly discriminatory implications for people of alternative orientation. What are the consequences? Do we have to live with the reality that, in the final analysis, discrimination against religious or belief minorities can never be completely avoided? The principle of ‘reasonable accommodation’ may help find an answer.81

Another example is religious discrimination in the workplace.82 Work is where many spend much of their day and a critical site for experiencing religious discrimination or accommodation. It is clearly a sphere covered by the 1981 Declaration which states in article 4(1) that ‘States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief […] in all fields of civil, economic, political, (p. 325) social and cultural life’. However, responding to religious diversity and religious or belief requests, demands, and accommodation raises many challenges. We have addressed the diversity of religions and beliefs throughout this Commentary, but ‘workplaces’ too are very diverse. The disciplined environment of the armed forces, the openness of universities, the pressing schedule of factories and fire departments, the need for neutrality in a court, hospital, or Government services department, the sensitivities in a hospice and hospital, these are all potentially at stake. Yet ‘thoughtlessness’ in assuming formal equality is insufficient, and gives rise to misunderstandings and pressing dilemmas all round. Such formality only serves to eclipse or eradicate religion or belief at the workplace. Understandably, the requirements of the employment contract need to be fulfilled, but Special Rapporteur Bielefeldt urges that these can ‘never amount to a general waiver’ to manifestation of religion or belief in the workplace as a whole.83 After all, not only does the State have formal obligations regarding discrimination in the workplace, but others too should play a role in creating and contributing to ‘a climate of tolerance and to an appreciation of the diversity of religion or belief in the workplace’.84 It is in the ‘comprehensive approach’85 required to tackle this, that ‘reasonable accommodation’ becomes pertinent.

(b)  What is ‘reasonable accommodation’?

Eliminating discrimination in all its facets may require positive measures of adjustment in institutions—schools, offices, employment, etc.— on behalf of certain individuals in order to allow them to live in accordance with their religion or belief. This may even include modifications of general rules. Such measures of accommodation should remain within a ‘reasonable’ framework to be justifiable and manageable. Rather than sidestepping claims of equality, the purpose is to realize a more complex equality, often termed ?substantive equality’. As Gabrielle Caceres puts it, ‘reasonable accommodation aims at relaxing generally applicable rules in order to guarantee a more substantive equality in which the specificities of everyone are taken into account’.86

A landmark case, which helped to shape the notion and understanding of reasonable accommodation, was the US Supreme Court decision in favour of Adeil Sherbert, a Seventh Day Adventist who had lost her employment because of her refusal to work on Saturdays. The administration had furthermore rejected her claims for unemployment compensation benefits, arguing that she herself had been responsible for the loss of her job. However, she ultimately won her case by claiming respect for the special needs of her faith. In its judgment Sherbert v Verner (1963) the Supreme Court developed a formula which became known as the ‘Sherbert test’. It consists of four components: (1) a person’s claim involving a sincerely held religious belief; (2) a Government action causing a substantial burden on that person’s ability to act on her or his belief; (3) the absence of a ‘compelling State interest’; and (4) the lack of attempts on the side of the Government to (p. 326) pursue said interest in a manner least restrictive or burdensome to religion.87 The Sherbert case marks the beginning of a series of court cases in the US on claims to religiously motivated specific accommodation for persons belonging to minorities. The outcomes are very different. Whereas in some cases the courts have shown a readiness to accommodate specific religious needs unless they collide with a ‘compelling State interest’, other cases have led to much more restrictive court decisions.88 By and large, courts have shown particular reluctance in cases concerning the private sector.

Deciding on the space and limits of reasonable accommodation is complicated. However, the general philosophy of accommodation has a solid human rights basis. The purpose is to overcome the indirectly discriminatory implications of those societal or legal norms which stem from the dominant religious traditions of a country and to create more suitable conditions for members of minorities who should be able to live in accordance with their religious or belief-related norms and convictions. In some situations, this may justify exceptions from general rules if this is the only possibility of avoiding conflict with deeply held convictions. At the same time, measures of accommodation must therefore remain within a ‘reasonable’ framework, i.e. they should not create a disproportionate or undue burden for the institution which is supposed to take such measures.

Some forms of accommodation have become standard practice in many public and private institutions. Canteens frequently provide halal or kosher food and offer vegetarian meals, and in many cases this is appreciated far beyond those employees who have requested such options for religious reasons. Public and private employers have successfully negotiated pragmatic ways of accommodating diverse religious holidays, for instance by permitting employees to use parts of their annual vacation for this purpose. There are also successful examples of allowing people to perform their prayer rituals within such institutions. Moreover, religious garments are part of normal life in many public institutions or private companies and are broadly respected by colleagues and customers. In short, provided there is goodwill on all sides, practical solutions can in most cases be found. It is important not to forget such overall positive experiences in discussions about accommodation of specific religious needs.

(c)  Objections and responses

Despite many positive experiences and examples, measures of reasonable accommodation often meet with scepticism or resistance from legislators, courts, and the population at large for various reasons.

(i)  Privileging minorities?

Against a widespread misunderstanding, the purpose of reasonable accommodation is not to ‘privilege’ members of religious minorities at the expense of the principle of equality. In fact, the opposite is the case. What is at stake in reasonable accommodation is an appropriately complex conceptualization, and a more effective implementation, of equality. As previously emphasized, in the framework of human rights, equality must not be mistaken for ‘sameness’ or ‘uniformity’; it always means a diversity-friendly equality. Implementing equality in the context of rights to freedom will thus bring to bear the (p. 327) existing and emerging diversity among human beings in all sectors of the society. This inter alia requires the elimination of discrimination, including indirect discrimination—which is the precise purpose of reasonable accommodation. In short, instead of diluting the principle of equality, reasonable accommodation contributes to a more complex, and thus more appropriate, conceptualization of equality based on equal respect and concern for all human beings with their diverse biographies, convictions, identities, and needs. It does not privilege certain groups of people but finally contributes to a diverse society to the benefit of all.

(ii)  Opening the floodgates to trivial demands?

Reluctance towards reasonable accommodation may furthermore reflect fears that embarking on such a policy could invite all sorts of trivial demands. Actually, it is important to ensure that reasonable accommodation does not fall prey to trivialities. The underlying idea is not simply to accommodate all kinds of personal tastes or preferences but to help avoid situations in which a person would otherwise be faced with a serious, existential dilemma. The preamble of the 1981 Declaration recalls that ‘religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life’. Those claiming some accommodation in order to fully exercise their freedom of religion or belief can therefore be expected to present arguments that without appropriate measures they would suffer an existential conflict, i.e. a dilemma of a serious nature. To be sure, in some cases it may be difficult to discern a serious religious or belief-related demand from mere trivial interests. When confronted with such questions, the availability of professional advice and support has high practical significance.

(iii)  Undue economic and managerial burdens?

The probably most widespread objection to measures of accommodation concerns anxieties of possibly far-reaching economic or managerial consequences.89 However, already the definition makes it clear that measures of accommodation should remain within a reasonable, i.e. manageable framework and should not amount to a disproportionate or undue burden for the respective institution. Depending on the specific context, this provision can serve as an argument for rejecting too far-reaching requests for accommodation, if they are likely to cause disproportionate economic or other costs. However, such rejection should always be concrete and confined to specific cases. A broadly applied ‘preventative’ strategy which, with regard to merely hypothetical costs and complications, might deny any discussion of accommodation in the first place, would be illegitimate. Moreover, experience shows that in many cases measures of accommodation are nearly or totally cost-free.90 Rejecting accommodation would thus be ‘unreasonable’ even in a narrow economic understanding of reasonableness.

(d)  Should reasonable accommodation be legally enshrined?

Reasonable accommodation has been formally recognized in the 2006 Convention on the Rights of Persons with Disabilities (CRPD) as a legally binding principle. This is a novelty in international human rights law. Article 2 of the CRPD defines: ‘Reasonable accommodation means necessary and appropriate modification and adjustments not imposing a (p. 328) disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment and exercise on an equal basis with others of all human rights and fundamental freedoms’.91 What is new is that article 5(3) of the CRPD stipulates a legal obligation for State Parties in this field: ‘In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.’92 Unlike the general purpose of a barrier-free society, which will always remain work-in-progress to be achieved step by step, measures of reasonable accommodation can directly be claimed by affected individuals. In its concluding observations on State reports, the Committee on the Rights of Persons with Disabilities has clarified accordingly that it treats failure to ensure reasonable accommodation to constitute a violation of the principles of equality and non-discrimination.93 Since the CRPD represents insights of the more recent international debates on measures needed to effectively combat discrimination—including indirect and structural discrimination—it may thus operate as a door opener for employing reasonable accommodation also when working on the elimination of discrimination on other grounds.94

The question is: should reasonable accommodation in the field of religious or belief-related diversity be understood and practised as a legally binding principle—in analogy to the CRPD? In 2010, the European Court of Human Rights decided in favour of a Polish prisoner who for conscientious reasons insisted on receiving vegetarian food, thereby invoking freedom of religion or belief.95 This successful case of accommodation so far has been exceptional in the Strasbourg jurisprudence. In general, European legislators and courts have been very reluctant to accept reasonable accommodation as a legally binding principle.96 The EU-funded RELIGARE research project comes to the quite sobering conclusion that reasonable accommodation is even denied in situations in which respective measures would be nearly cost-free. According to the RELIGARE scholars, ‘there are gaps in the existing legal protection that make it difficult adequately to address (even modest) claims for religious accommodation in Europe’. Hence, the project recommends using ‘the important additional tool of legally enshrined reasonable accommodation on the basis of religion and belief in the workplace’.97

Those opposed to a legal approach on this issue argue that turning accommodation into a legally enforceable right could negatively backfire and reduce the readiness to experiment with measures of reasonable accommodation. Instead of treating accommodation as a legal entitlement, they prefer policies of encouraging public and private institutions to (p. 329) use reasonable accommodation as a pragmatic tool outside of the realm of strictly legal norms. However, the downside of this non-legal approach is that members of minorities in need of reasonable accommodation would remain unilaterally dependent on the willingness of those in charge to consider specific religious or belief-related requests.

In his thematic report on the elimination of religious intolerance and discrimination in the workplace, Special Rapporteur Bielefeldt advocated for combining the advantages of a legal understanding and of a pragmatic approach to reasonable accommodation.98 Denying a person accommodation in situations where respective measures obviously would not amount to a disproportionate or undue burden, could in fact be seen as an act of discrimination, depending on the circumstances of the particular case. Individuals should have the option to resort to legal remedies in order to challenge denials of such accommodation measures which could be reasonably enacted. The serious implications which indirect discrimination has for the full enjoyment of freedom of religion or belief for all without discrimination certainly warrant taking such a legal course without which accommodation would remain a mere act of mercy. At the same time, those in charge of managing public or private institutions should feel encouraged to further explore and expand the scope of reasonable accommodation also way beyond what is legally enforceable. The legal and the pragmatic approaches will most likely imply different thresholds of evidence when it comes to assessing the reasonableness of certain measures. Courts might presuppose a rather high threshold of evidence before finding a violation of reasonable accommodation, which still leaves a lot of scope for pragmatic experimentation in the area of accommodation beyond what is a legally enforceable entitlement. Moreover, States should create an encouraging environment for reasonable accommodation by providing advice and establish good practice examples in their own employment policies.

Policies of reasonable accommodation can doubtlessly lead to complicated questions, problems, and at times impasses. For instance, it may not always be easy to distinguish between serious demands put forward in the name of a person’s religious identity and mere trivial interests. Drawing a line requires sensitivity for people’s identity-shaping convictions and practices as well as a solid understanding of the precise normative implications of freedom of religion or belief and its universal and inclusive application. Calculation of costs or possible side effects is another complicated matter which requires experience and professional knowledge. The availability of appropriate training and advice is therefore of strategic importance for a successful handling of reasonable accommodation.

V.  Issues of Interpretation

1.  Extremism, Discrimination, and Intolerance

Religious discrimination includes the discrimination that (allegedly) stems from particular religious or belief positions and targets others. In addition, sometimes a patriarchal regime itself is imposed either through State or community norms and in the name of religion.99 However, it is ‘clear from the lack of homogeneity among religions, as well as (p. 330) within them, that some of the patriarchal religious norms, defended on religious freedom grounds, are not agreed upon by the different faiths or even by the various branches within each’.100

‘Religious discrimination’, as the rationale given for discrimination against others, is exemplified through coercive religious regulations, imposition of laws, and restrictions imposed on others on grounds of the perpetrator’s religion or belief. It targets both those who are discriminated due to their (actual or perceived) religion or belief affiliation and those who become victims of discrimination due to the coerced religious positions of the perpetrator. Special Rapporteur Jahangir refers to the discrimination that flows from the perpetrator’s religion or belief as ‘discrimination and violence in the name of religion or belief, i.e., based on or arrogated to religious tenets of the perpetrator’,101 in order to clearly distinguish it from discrimination based on religion or belief of the victim. The two strands can, of course, overlap in cases where the perpetrator’s religion or belief is used to allegedly justify violations against targeted subjects due to their religious or belief affiliation. Members of religious minorities are especially vulnerable to discrimination on the grounds of religion or belief. Such discrimination is also evident in the ‘targeting of places of worship and other religious buildings or properties […] and the desecration of cemeteries’.102

These two aspects of ‘religious discrimination’ build on the references in the 1981 Declaration both to ‘intolerance’ and to ‘discrimination’ based on religion or belief. Preambular paragraph 5 indicates what is meant by intolerance based on religion or belief, that is the use of religion or belief to violate the rights of others, namely ‘to ensure that the use of religion or belief for ends inconsistent with the Charter of the United Nations, other relevant instruments of the United Nations and the purposes and principles of the present Declaration is inadmissible’.103 This reading of ‘intolerance’ seems to be vindicated later in the preamble, where concern is expressed about ‘manifestations of intolerance and by the existence of discrimination in matters of religion or belief’,104 clearly distinguishing the two, and also echoed in the subsequent paragraph.105

Linking this distinction to extremism, Special Rapporteur Amor often emphasized that religious claims to exclusivity and religious drives to fight ‘deviance’ threaten freedom of religion or belief. Such exclusivity utilizes religion ‘as a cover or an alibi for criminal acts which are often difficult to confront’.106 In this way, religious intolerance undermines (p. 331) freedom of religion or belief and leads to the violation of numerous other human rights too. The issue of religious extremism was also raised by Special Rapporteur d’Almeida Ribeiro in his last report to the Commission on Human Rights in 1993 noting ‘how difficult it is to curb or eradicate the propagation of extremist and fanatical opinions’ which often result from ‘sectarian or dogmatic intransigence’.107

Religious intolerance and religious extremism are therefore neighbouring concepts and they ‘can occur both within a religion and between religions’.108 Special Rapporteur Amor strongly condemned religious extremism, stating that it ‘adopts, provokes or sustains violence or manifests itself in less spectacular forms of intolerance, constitutes an unacceptable assault on both freedom and religion […] when extremism resorts to a frenzy of wanton terrorism and becomes a hideous monster that kills in the name of God and exterminates in the name of religion, when it engages in the most despicable acts of barbarity, and knows no bounds in its cruelty, then silence amounts to complicity and indifference becomes active collusion. Tolerance of extremism is tolerance of the intolerable.’109 Furthermore, the mandate practice contains several examples of collective suicides as well as terrorist and suicide attacks committed in the name of religion.110 To Special Rapporteur Amor, religious extremism constituted a ‘cancer’111 and ‘an ever-growing scourge’,112 that may ‘threaten an entire society (Yemen)’,113 or ‘certain categories of individuals such as artists (Chad) or teachers (Egypt), or certain religious minorities (Mexico and Somalia)’.114 Afghanistan under the Taliban was used as the case that epitomizes this scourge, where the Taliban ‘in the name of their own interpretation of Islam, but in reality using religion as a political tool in the interests of power, have taken an entire society hostage’.115

Special Rapporteur Jahangir also recognized discrimination and violence in the name of religion or belief to be ‘at the heart of many conflicts which are—or are at least perceived to be—based on religious issues, often intertwined with particular ethnic, national, political or historical backgrounds’.116 She noted the prevalence of cases that had arisen from this and related it to militant extremism and religious polarization.117 Attacks on places of worship, blasphemy charges, sectarian violence, and religious persecution raised one set of concerns; but also the imposition of religious laws pertaining to personal status or criminal law being imposed on women and children raised other concerns.118

(p. 332) In his 2000 report to the General Assembly, Special Rapporteur Amor recognized three types of religious extremism, i.e. (a) ‘escalating political tensions culminating in extremism’; (b) extremism resulting from ‘sheer religious fanaticism’; and (c) using ‘religion for political ends’. He did not argue that these are discrete phenomena, and indeed they certainly appear to overlap, but he insisted that these are important distinctions to be observed.

(a)  ‘Escalating political tensions culminating in extremism’

Amor used the examples of tensions ‘in Pakistan between factions of different political sensibilities within a single religion, or in Sri Lanka, where the Liberation Tigers of Tamil Eelam exemplify ethnic extremism with political connotations’119 as epitomizing escalating political tensions which culminate in extremism. He also noted that ‘ethnic, religious and political forms of extremism may be combined’,120 and that the boundaries cannot be drawn so sharply between different extremisms.

(b)  Extremism resulting from ‘sheer religious fanaticism’

Special Rapporteur Amor also provided examples of sheer religious fanaticism in ‘Pakistan, where the fundamental freedom of any person to change his or her religion is not accepted; in Jordan, where any critical debate within a religion is rejected; in Egypt, where religious minorities are not tolerated; in Georgia, where diversity within a religion or belief is rejected; and in Israel, where religious sites are profaned by those of another religion in order to impose their absolute belief’.121 From these examples, he noted that ‘religious extremism can result from sheer religious fanaticism, where a given individual or group believes that he or it possesses the absolute truth and wishes to impose it on others.’122

(c)  Extremism using ‘religion for political ends’

Finally, Amor gave an example from India, where the educational, social, and cultural role of a religious minority had been questioned in order to widen the electoral base of nationalist political parties ‘of a religious character’,123 as well as another example from Indonesia where an extremist group claimed to be waging a holy war against Christians, while in fact destabilizing the democratic process in Indonesia.124 These examples illustrate situations where religious extremism uses religion for political ends.

After discussing these extremisms of various intensity and forms, Special Rapporteur Amor made four observations. The first is that religious extremism is both ‘interreligious’ and ‘intrareligious’, i.e. it affects either communities not belonging to the same religion or currents within the same religion.125 The second is his observation that religious extremism is expressed through violence ‘both symbolic (discrimination against women and others) and physical (serious attacks against persons of a given religious faith, members of the clergy, places of worship and other religious institutions, and so on)’.126 The third is that no religion has the monopoly over religious extremism and that, in fact, all religions (p. 333) were fundamentally based on tolerance and non-discrimination, whereas ‘[c]ertain interpretations and certain manipulations of people on the basis of religion have distorted it and wrongly associated it with extremism’.127 This ‘cancer’, as he called it, ‘affects the members of that group just as much as those of other religious groups’.128 Fourthly, and finally, he noted that though extremism primarily stemmed from non-State entities, this did not absolve States of ‘their responsibility to guarantee rights, especially the security of persons under their jurisdiction, in accordance with international law’.129 Indeed the complexity and entrenched nature of extremism only seems to have multiplied in the years since Amor’s comments in 2000 and more is now known about State funding from various quarters fuelling violent extremism and terrorism.

(d)  Terminology: from ‘combating extremism’ to ‘preventing violence committed in the name of religion’

The successors of Special Rapporteur Amor, however, have been more cautious in using the term ‘extremism’. In an allegation letter sent to Kazakhstan in 2004, Jahangir, for example, shared concerns about the existence of a draft law on ‘combating extremist activity’ and amendments to existing laws concerning the ‘battle against extremist activity’ which reportedly did not define what ‘extremism’ constitutes, but would substantially increase State control over religious communities.130 Another case of 2010 referred to the arrest of nine Ahmadis in Egypt based on an interrogation memorandum by State Security Investigations officers which charged the group with holding and promoting religious ‘extremist ideas’.131 The mandate practice illustrates the serious human rights implications if domestic legislation or policies use the term ‘extremism’ without describing it properly or when defining it in such a vague manner that the related prohibitions could be applied to any religious association or would criminalize perfectly legitimate manifestations of religion or belief. In this context it is noteworthy that the Rabat Plan of Action, despite its related thematic focus, does not refer at all to the term ‘extremism’ but rather sticks to the legal language of article 20(2) of the ICCPR concerning ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.132

Thus instead of the ill-defined and potentially counter-productive terminology of ‘combating extremism’ it seems advisable to refer to tackling ‘discrimination and violence in the name of religion or belief’. In her last report to the Human Rights Council, which analysed this issue further, Jahangir underlined the important roles of non-State actors—including theistic, non-theistic, and atheistic believers—in addressing discrimination and violence in the name of religion or belief as well as ‘building pluralistic societies for the twenty-first century’.133 Similarly, Bielefeldt has put the focus on preventing and eliminating ‘violence committed in the name of religion’, with concrete recommendations addressed to various stakeholders, including State institutions, religious communities, civil society organizations, the media, and the international community.134 Such a holistic (p. 334) approach as advocated by these two mandate-holders seems more conducive to addressing the underlying problems and furthermore avoids giving a pretext for authoritarian Governments to suppress—under the guise of ‘combating extremism’—perfectly legitimate activities of religious minorities and/or dissenters.

2.  Practical Measures to Combat Societal Discrimination and Religious Intolerance

Key efforts outlined by the Special Procedures to address societal discrimination and religious intolerance have included interfaith dialogue, education, and highlighted the role of civil society actors such as non-governmental organizations and the media.135

(a)  Interfaith dialogue and intrareligious communication

The social hostilities that arise from non-State actors can lead to interreligious or intrareligious discrimination, religion-belief, or belief-religion discrimination. Special Rapporteur Jahangir raised the need to create the kind of ‘informed public opinion that can effectively challenge religious bigotry’.136

The Special Rapporteurs have recommended that States facilitate the institutionalization of dialogue between the government, religious, and non-governmental organizations, at all levels,137 in order to examine ‘ways and means of combating discrimination and intolerance in matters of religion or belief’.138 Though facilitated by the State, the objective is to affect a positive change in the social relations between various elements in society. It therefore serves as ‘one of the pillars of prevention’ of discrimination and violations of freedom of religion or belief.139 Jahangir noted the need to ‘create better harmony between religious communities to enable them to live side by side and in mutual respect’.140 She therefore stated that efforts towards the promotion of interreligious dialogue at all levels should be encouraged and actively supported by States.

Jahangir also insisted that freedom of religion or belief was crucial in this context. Interreligious dialogue is neither an alternative to upholding freedom of religion or belief, nor should it be used as a mask to hide violations of freedom of religion or belief. It is effective only if there is a genuine commitment to dialogue within the framework of freedom of religion or belief. It was in interrogating this disconnect, that Jahangir observed that despite the holding of regular high-level international religious dialogues, Governments rarely organize intergovernmental meetings in order to discuss the rise of religious intolerance,141 though their contribution particularly at the regional level would likely be highly pertinent. She encouraged more attention to the latter.

Special Rapporteur Amor trusted that interfaith dialogue could serve ‘to combat all extremism, whatever religion is invoked, and ensure religious tolerance both internationally and within States’.142 Bielefeldt, who prefers to use the terminology ‘interreligious communication’ (instead of the more narrow term ‘dialogue’), has flagged the possible (p. 335) negative side effects when the State is perceived to take sides in favour of a particular religion or specific strand, which may ultimately lead to a boycott by and alienation of those communities which ideally should have been engaged through such interreligious communication projects.143 He stressed that the ‘relevance and degree of intrareligious diversity should never be undervalued’ and in order to avoid downplaying pluralism within religious or belief communities he suggested ‘a good combination of intra- and interreligious communication’.144 This would also help to eliminate over-generalizations and concomitant discrimination against believers.

(b)  Education

Another effort to address societal discrimination and religious intolerance is education, whose ‘essential and priority role’145 in combating these phenomena is well established. Education should be the ‘main target’ for making a ‘decisive contribution’ to intolerance, and be ‘the prime means of combating discrimination and intolerance’.146 Education provided ‘a primary and fertile’147 avenue for lasting progress. The State should therefore ensure that school and university curricula promote tolerance and understanding in matters of religion or belief, and that education should ‘be aimed at inculcating, from early childhood, a spirit of tolerance and respect for the spiritual values of others’.148

It is not surprising, therefore, that the Madrid Consultative Conference on School Education in Relations with Freedom of Religion or Belief, Tolerance and Non-Discrimination, initiated by Special Rapporteur Amor in November 2001, gave particular attention to this, and recognized that ‘tolerance involves the acceptance of diversity and the respect for the right to be different, and that education, in particular at school, should contribute in a meaningful way to promote tolerance and respect for the freedom of religion or belief’.149

(c)  Non-governmental organizations and the media

Furthermore, interventions of non-governmental organizations150 ‘can play an active role in assuring respect for and promoting tolerance and freedom of religion and belief’, for example through holding national and international inter-denominational dialogues.151 The media also has a recognized contribution to make, not only in highlighting freedom of religion or belief as a human right but also in promoting tolerance between different religions and beliefs.152 They can also play a role through balanced reporting.153 As Jahangir observed, ‘denunciation of human rights abuses is often selective; the religion of the victim and of the perpetrator, rather than the act itself, seems to be a determining (p. 336) factor as to who feels obliged to publicly condemn the incident. Where the victim belongs to one religion, but the perpetrator to another, public outrage from the victims’ community unfortunately seems to be greater than if the perpetrator and the victim had the same religion or belief. […] All perpetrators, regardless of their or the victims’ religious affiliation, should be brought to justice.’154 Additionally, she called for more attention to be given to incitement to violence against smaller religions.155

3.  More Credibility through State ‘Neutrality’?

As emphasized throughout this chapter, the State has the overarching responsibility for ensuring non-discrimination and fighting the root causes of religious intolerance and discrimination. Does this presuppose a State which remains (or tries to remain) ‘neutral’ concerning issues of religion or belief? Neutrality is a complicated and contested concept, and as discussed above, many prima facie ‘neutral’ rules may actually reflect the dominant religious patterns that govern a society and thus may amount to discrimination against minorities. The term ‘neutrality’ has therefore often caused suspicion. However, while it may be advisable to show much caution concerning claims that neutrality has actually been accomplished it seems at the same time difficult to discard that notion altogether, since it is deeply interwoven with ideas of fairness, in particular procedural fairness. It may be true that neutrality is easier said than done, but simply abandoning the aspiration of neutrality in the sense of procedural fairness would be counter-productive, in particular in policies aimed at combating discrimination.

At a closer look it becomes obvious that in the context of freedom of religion or belief the term ‘neutrality’ can have very different meanings, which is a source of much confusion. It can be a proxy for a policy of strict non-commitment and ignorance towards religious or belief diversity and may even lead to rather restrictive measures in this area. Unfortunately, there are many examples of such restrictive readings of neutrality both in public institutions and within the private sector. By contrast, neutrality can also represent a policy of fair inclusion of people of diverse religious or belief orientation in the internal and external operations of respective institutions. In this positive understanding, the principle of neutrality serves as an antidote to all sorts of biases, exclusions, negative stereotypes, and discrimination. In other words, a ‘neutral’ institution in this latter understanding provides an open and inclusive framework for the free and non-discriminatory unfolding of religious and belief diversity within staff and in dealing with the outside society. In order to make sure that neutrality does not become a guise for hiding structural or indirect discrimination, the space provided by neutral institutions—State institutions or others—should be filled by dialogue, sensitivity training, and other measures. In this sense, neutrality is a demanding concept, and it will always remain work-in-progress.

Footnotes:

1  E/C.12/GC/20, para 2.

2  Edmund Burke, Reflections on the Revolution in France (Dent 1910).

3  See Jill Marshall, Human Rights Law and Personal Identity (Routledge 2014).

4  For the Council of Europe’s action against racism see ‘All Different—All Equal’ (CoE, 17–25 March 2007) <www.unitedagainstracism.org/archive/pages/act07arw.htm> accessed 22 September 2015. See also OHCHR’s campaign ‘Free and Equal: A New Global Public Education Campaign against Homophobia and Transphobia’ (OHCHR, 26 July 2013) <www.ohchr.org/EN/NewsEvents/Pages/FreeAndEqualCampaign.aspx> accessed 22 September 2015.

5  For a discussion see Nazila Ghanea, ‘Religion, Equality, and Non-Discrimination’ in John Witte and M. Christian Green (eds), Religion and Human Rights: An Introduction (OUP 2011).

6  For a discussion see: USCIRF, The Religion–State Relationship & the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Majority Muslim Countries and Other OIC Members, 2012 update (USCIRF 2012) <www.uscirf.gov/sites/default/files/resources/USCIRF%20Constitution%20Study%202012%20(full%20Text(2)).pdf> accessed 22 September 2015.

7  For discussion see: ODIHR, Guidelines on the Legal Personality of Religious or Belief Communities (OSCE 2014).

8  For further discussion see below chapter 2.2. on State religion.

9  Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, N. P. Engel 2005) 51.

10  For a discussion of shifts in this area in the context of England and Wales see Paul Weller, Kingsley Purdam, Nazila Ghanea, and Sariya Contractor, Religion or Belief, Discrimination and Equality: Britain in Global Contexts (Continuum 2013).

11  A/HRC/10/8, para 30.

12  A/RES/1510(XV), preambular para 4.

13  Ibid., para 2.

14  E/C.12/GC/20, para 7.

15  See also the discussion on the ‘accessory character’ of article 2 in chapter 5.3. below on legislation (under IV.2.).

16  ICERD, article 5(d)(vii) states: ‘In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: […] (d) Other civil rights, in particular: […] (vii) The right to freedom of thought, conscience and religion.’

17  1981 Declaration, preambular para 1.

18  Ibid., article 2(2).

19  In E/CN.4/RES/2005/40, para 7, the Commission on Human Rights ‘[e]xpresses concern at the persistence of institutionalized social intolerance and discrimination practised in the name of religion or belief against many communities’.

20  1981 Declaration, article 3.

21  See below chapter 5.1. on derogation.

22  ICCPR, article 4(1).

23  Tol and Akbaba state that ‘[i]t involves a form of limitation on religious freedom that is unique to some but not all religions within a state.’ Gönül Tol and Yasemin Akbaba, ‘Minorities on “Civilizational” Fault Lines: An Assessment of Religious Discrimination’ (2014) 15 Politics, Religion & Ideology 161, 165.

24  E/C.12/GC/20, para 8(a).

25  E/CN.4/RES/1986/20, adopted on 10 March 1986, by a roll-call vote of 26 against 5, with 12 abstentions, preambular para 3.

26  Ibid., para 1.

27  Ibid., preambular para 5.

28  Ibid., para 2.

29  The Human Rights Committee states that ‘article 18.4 permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way’ ( HRI/GEN/1/Rev.9, pp 205–206, para 6). It also stresses that ‘public education that includes instruction in a particular religion or belief is inconsistent with article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians’ ( ibid.).

30  Regarding parents, this is ‘to ensure that their children receive a religious and moral education in conformity with their own convictions’ ( ibid.).

31  Ibid., para 5.

32  1981 Declaration, article 2(2).

33  A/HRC/10/8, para 37. See also below chapter 5.3. on legislation.

34  See Waldman v Canada Comm no 694/1996 (Human Rights Committee, views of 3 November 1999) CCPR/C/67/D/694/1996, para 10.4 as discussed below; quoted by Special Rapporteurs Amor and Jahangir in A/CONF.189/PC.1/7, para 120 (in footnote 129); A/CONF.189/PC.2/22, para 44 (in footnote 44); and A/63/161, para 58 (in footnote 56). See also above chapter 1.3.10. (under V.1.(a)).

35  For example, see Nazila Ghanea and Binesh Hass, Seeking Justice and an End to Neglect: Iran’s Minorities Today (Minority Rights Group International 2011).

36  Many of these issues have been discussed in the chapters on women’s rights and on minorities, hence will not be discussed further here. See below chapter 3.1. on women and chapter 3.5. on minorities.

37  HRI/GEN/1/Rev.9, p 205, para 5.

38  See below chapter 5.2. on limitations.

39  HRI/GEN/1/Rev.9, p 206, para 8.

40  Ibid. See also general comment no. 34 on freedoms of opinion and expression, CCPR/C/GC/34, para 32. The issue is discussed further below in chapter 5.2. on limitations.

41  A/51/542, para 32.

42  A/HRC/10/8, paras 41–43; A/HRC/10/8/Add.4, para 21; A/55/280/Add.2, paras 50 and 64; E/CN.4/1987/35, para 63; A/HRC/7/10/Add.3, para 38; A/51/542/Add.1, paras 65–67; E/CN.4/2006/5, para 55; Karnel Singh Bhinder v Canada Comm no 208/1986 (Human Rights Committee, views of 9 November 1989) CCPR/C/37/D/208/1986, para 6.2.

43  A/HRC/10/8, paras 44–46; A/HRC/4/21/Add.1, paras 57–68; E/CN.4/1993/62, para 45; E/CN.4/2005/61/Add.1, para 173; A/HRC/7/10/Add.1, paras 180–181; E/CN.4/1996/95/Add.2, para 62; E/CN.4/2006/41/Add.2, paras 81–85.

44  A/HRC/10/8, paras 47–48; E/CN.4/1987/35, para 64; A/HRC/10/8/Add.3, para 23; E/CN.4/1999/58/Add.2, paras 35 and 113; A/63/161, para 77.

45  A/HRC/10/8, paras 49–51; E/CN.4/1987/35, para 65; E/CN.4/2005/50, para 100; A/62/280, paras 72 and 78; E/CN.4/2006/5/Add.4, paras 47–68 and 98–104; CRC/C/15/Add.240, paras 25–26; A/HRC/10/8/Add.1, paras 196–198.

46  A/HRC/10/8, paras 52–54; A/56/253, para 27; A/HRC/10/8/Add.2, para 77; CERD/C/ISR/CO/13, para 28; E/C.12/1/Add.90, para 16; E/CN.4/2002/73/Add.1, paras 150 and 163; E/CN.4/1999/58/Add.1, paras 54–69; E/CN.4/1998/6/Add.1, paras 77–98.

47  A/HRC/10/8, para 61.

48  For example see discussion in Paul Weller, Kingsley Purdam, Nazila Ghanea, and Sariya Cheruvallil-Contractor, Religion or Belief, Discrimination and Equality: Britain in Global Contexts (Bloomsbury 2013). See also the work on ‘Advancing equality worldwide’ (Equal Rights Trust, 2015) <www.equalrightstrust.org> accessed 22 September 2015.

49  A/HRC/10/8, para 30.

50  E/CN.4/1987/35, para 105. For further discussion see below chapter 5.3. on legislative issues.

51  A/HRC/28/66, para 55. See also above chapter 1.3.2. on places of worship (under V.2. on duty bearers under international human rights law).

52  A/HRC/19/60/Add.2, para 87.

53  A/HRC/22/51/Add.1, para 82.

54  A/56/253, paras 27 and 30.

55  A/HRC/2/7, para 19.

56  A/HRC/18/48, para 31.

57  Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, ‘Rule of Terror: Living under ISIS in Syria’ (14 November 2014) A/HRC/27/CRP.3; A/HRC/29/51, para 30. See also the joint urgent appeal by seven Special Procedures, A/HRC/30/27, page 44 (case IRQ 1/2015).

58  A/HRC/RES/S-23/1, operative para 9, requests OHCHR ‘to prepare a report on violations and abuses of human rights and atrocities committed by the terrorist group Boko Haram in the States affected by such acts, with a view towards accountability’. See also the oral update on ‘Boko Haram’ (OHCHR, 1 July 2015) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16176> accessed 22 September 2015, and the report to the Human Rights Council (A/HRC/30/67).

59  Compare for example the different views of Andrew Clapham, ‘Focusing on Armed Non-State Actors’ in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (OUP 2014) 789; and Sir Nigel Rodley, ‘Non-State Actors and Human Rights’ in Scott Sheeran and Sir Nigel Rodley (eds), Routledge Handbook of International Human Rights Law (Routledge 2013).

60  Human Rights Committee general comment no. 31, CCPR/C/21/Rev.1/Add.13, para 8 (where the term ‘[Parties]’ is indicated in square brackets, unlike in the subsequent compilation HRI/GEN/1/Rev.9, p 244).

61  CEDAW/C/GC/30, para 16.

62  See A/HRC/28/66, para 55, referring to the reports of the UN Mission in the Democratic Republic of the Congo and OHCHR, Summary of Fact Finding Missions on Alleged Human Rights Violations Committed by the Lord’s Resistance Army (LRA) (UN 2009) <www2.ohchr.org/SPdocs/Countries/LRAReport_December2009_E.pdf> accessed 22 September 2015; and OHCHR, Report on the Situation of Human Rights in the Sudan (UN 2009) <http://www2.ohchr.org/SPdocs/Countries/LRAReport_SudanDecember2009.doc> accessed 22 September 2015.

63  See UN Mission in the Republic of South Sudan, Conflict in South Sudan: A Human Rights Report (UN 2014) paras 18 and 313.

64  The role of non-State as well as State actors in giving rise to such discrimination finds prominent recognition in article 2(1) of the 1981 Declaration, and is further implied in its article 4(1).

65  A/55/280, para 114(a).

66  Ibid., para 111.

67  Ibid., para 112.

68  Ibid., para 114.

69  Ibid., para 115(b).

70  E/C.12/GC/20, para 10(a).

71  Ibid., para 10(b).

72  See E/CN.4/2006/5, para 55 and above chapter 1.3.3. on religious symbols.

73  See below chapter 3.5. on minorities.

74  Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ v Belgium Apps nos 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64 (ECtHR, judgment of 23 July 1968), Interpretation adopted by the Court, para 10.

75  A/HRC/10/8, para 31.

76  Ibid., para 36.

77  E/C.12/GC/20, para 8(b). For a discussion of possible pitfalls in the understanding of ‘substantive equality’ see above the chapter on underlying principles (under VII.2. and VII.3.).

78  Alicia Ely Yamin, ‘Shades of Dignity: Exploring the Demands of Equality in Applying Human Rights Frameworks to Health’ (2009) 11 Health and Human Rights 1, 6.

79  Ibid.

80  Christopher McCrudden, ‘The New Concept of Equality’ (2003) 4 ERA Forum 9, 21.

81  This topic has been explored in some details in the report by Gérard Bouchard and Charles Taylor, Building the Future. A Time for Reconciliation (Commission de Consultation sur les pratiques d’accommodement reliées aux différences culturelles: Quebec 2008).

82  The discussion on reasonable accommodation borrows from Special Rapporteur Bielefeldt’s report on discrimination in the workplace, A/69/261.

83  A/69/261, para 67.

84  Ibid., para 69.

85  Ibid., para 70.

86  Gabrielle Caceres, ‘Reasonable Accommodation as a Tool to Manage Religious Diversity in the Workplace: What About the “Transposability” of an American Concept in the French Secular Context?’ in Katayoun Alidadi, Marie-Claire Foblets, and Jogchum Vrielink (eds), A Test of Faith?: Religious Diversity and Accommodation in the European Workplace (Ashgate 2012) 284.

87  US Supreme Court, Sherbert v Verner 374 US 398 (1963), paras 402–403.

88  See W. Cole Durham Jr and Brett G. Scharffs, Law and Religion: National, International, and Comparative Perspectives (Aspen 2010) 209ff.

89  See also above chapter 1.3.4. on holidays.

90  See findings of the RELIGARE project, ‘Religare’ (EU, 13 Jan 2014) <www.religareproject.eu> accessed 22 September 2015.

91  Convention on the Rights of Persons with Disabilities (CRPD), article 2.

92  Ibid., article 5(3).

93  See the examples enumerated in A/69/261, para 49 (footnote 20).

94  This is even more so the case, since the concept of reasonable accommodation was developed and tested first in cases involving religious discrimination. For more details see above chapter on underlying principles.

95  See Jakóbski v Poland App no 18429/06 (ECtHR, judgment of 7 December 2010).

96  For a critical analysis (with a particular focus in the workplace) see Saïla Ouald Chaib, ‘Religion Accommodation in the Workplace: Improving the Legal Reasoning of the European Court of Human Rights’ in Katayoun Alidadi, Marie-Claire Foblets, and Jogchum Vrielink (eds), A Test of Faith?: Religious Diversity and Accommodation in the European Workplace (Ashgate 2012); Titia Loenen, ‘Accommodation of Religion and Sex Equality in the Workplace under the EU Equality Directives: A Double Bind for the European Court of Justice’ ibid.

97  Marie-Claire Foblets and Katayoun Alidadi, ‘The Religare Report: Religion in the Context of the European Union: Engaging the Interplay between Religious Diversity and Secular Models’ in Marie-Claire Foblets and others (eds), Belief, Law and Politics: What Future for a Secular Europe? (Ashgate 2014) 19.

98  See A/69/261.

99  Frances Raday, ‘Culture, Religion, and Gender’ (2003) 1 International Journal of Constitutional Law 663, 672.

100  Ibid., 675.

101  A/HRC/13/40, para 33.

102  Ibid., para 35.

103  A/RES/36/55, preambular para 5.

104  Ibid., preambular para 8.

105  Ibid., preambular para 9 also distinguishes ‘intolerance’ from ‘discrimination’ in that it states ‘Resolved to adopt all necessary measures for the speedy elimination of such intolerance in all its forms and manifestations and to prevent and combat discrimination on the ground of religion or belief.’ However, in the operative paragraphs, there is only one reference to ‘intolerance’ in paragraph 2(2), which seems to then confuse matters by firstly conflating ‘intolerance and discrimination based on religion or belief’ as if they were one and the same and, secondly, by then offering a definition for the two in almost identical terms to the definition given in other international instruments merely for ‘discrimination’. Article 2(2) states ‘For the purposes of the present Declaration, the expression “intolerance and discrimination based on religion or belief” means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.’ The relationship between the two, however, has been clarified in the mandate practice.

106  A/51/542, para 48.

107  E/CN.4/1993/62, para 78.

108  A/52/477, para 32.

109  A/53/279, para 89.

110  See E/CN.4/1998/6, para 151; A/52/477, para 58; E/CN.4/2001/63, paras 110 and 184; E/CN.4/2003/66, paras 93–104; A/HRC/7/10/Add.3, para 40; A/HRC/10/8/Add.2, paras 57 and 74; A/HRC/13/40, para 44; A/HRC/28/66, para 4.

111  A/51/542, para 33.

112  A/55/280, para 77. Special Rapporteur Amor also observed (A/55/280, para 83) that religious extremism ‘often targets inter- and intrareligious minorities (for example, according to the allegations of the Special Rapporteur, in Egypt and Georgia) and women (for example, according to a communication from the Special Rapporteur, atrocities against women in Lebanon)’.

113  A/51/542, para 33.

114  Ibid.

115  A/55/280, para 77. See also A/52/477, para 31(a)(i).

116  A/HRC/13/40, para 42.

117  Ibid.

118  Ibid., paras 45–46.

119  A/55/280, para 79.

120  Ibid., para 79.

121  Ibid., para 80.

122  Ibid.

123  Ibid., para 81.

124  Ibid.

125  Ibid., para 82.

126  Ibid., para 84.

127  Ibid., para 85.

128  A/51/542, para 33.

129  A/55/280, para 86.

130  E/CN.4/2005/61/Add.1, para 152.

131  A/HRC/16/53/Add.1, para 100; A/HRC/22/51, para 53 (footnote 45).

132  A/HRC/22/17/Add.4, annex, appendix.

133  A/HRC/13/40, para 47.

134  A/HRC/28/66, paras 86–118.

135  It should be noted that some media is controlled by the State, and its role in this regard will be impacted.

136  A/HRC/13/40, para 38.

137  A/56/253, para 122.

138  E/CN.4/1987/35, para 104.

139  A/56/253, para 123.

140  E/CN.4/2006/5, para 19.

141  Ibid., para 62.

142  A/52/477, para 85.

143  A/66/156, para 46.

144  Ibid., para 55.

145  A/50/440, para 35.

146  Ibid., para 82.

147  Ibid., para 36. See also A/52/477, para 19.

148  E/CN.4/1987/35, para 106.

149  E/CN.4/2002/73, appendix, preambular para (i).

150  For the role of non-governmental actors, also see below chapter 5.4. on defenders of freedom of religion or belief and non-governmental organizations (under V.3. on ‘strategies for implementation’).

151  E/CN.4/1987/35, para 107.

152  Ibid., para 108. Intolerance is also discussed below in more detail in chapter 4.1. on freedom of expression including questions related to religious conflicts, religious intolerance, and extremism.

153  See Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, A/HRC/22/17/Add.4, annex, appendix.

154  A/HRC/13/40, para 38.

155  Ibid., para 39.