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Contents
In international law, persecution can be legally defined in two arenas: within international criminal law and international refugee law. The two contexts are separate yet have similarities. They both find their origins in statute; persecution is defined as a crime against humanity under the Rome Statute of the International Criminal Court and under the Convention Relating to the Rights of Refugees. Both contexts also rely upon an element of discriminatory treatment by a State against an individual or group of individuals, on the basis of a personal characteristic such as religious beliefs, race, or nationality. Moreover, they both rely upon a severe violation of human rights that reaches a particular threshold.
While not all persecution is directed against individuals on the basis of religious beliefs, religious persecution is a predominant cause of violence across the world today. International human rights defenders agree that religious persecution is increasing across States both in severity and geographical scope, and persecution on the basis of Christian beliefs is the most prevalent form of religious persecution. According to a leading human rights research organisation, 2022 was the worst year on record for Christian persecution, with over 360 million Christians currently being persecuted on account of their faith.[1]
Persecution is a concept that finds its natural home in international human rights law both under international criminal law and international refugee law. The former contributes to the protection of human rights through the means of punishing those individuals who are responsible for mass discriminatory crimes that result in a severe violation of human rights – one of the international community’s most serious atrocities. The latter contributes to the status of refugees who cannot avail themselves of the protection of their country.
Regarding international criminal law, criminal liability is established for the perpetrators of persecution, who are likely to be individuals. The crime requires the mens rea of specific knowledge of the systematic or widespread attack on a person’s human rights. However, in refugee law, persecution forms part of the definition of a human rights violation by the State that the refugee seeks to rely upon for protection. International refugee law imposes duties on third States to protect and accommodate refugees when persecution is established and when the original State is unable or unwilling to provide protection.
Considering the higher threshold for establishing persecution under the crime against humanity, it is likely that a finding of persecution under international criminal law could amount to persecution under refugee law; although the converse is not necessarily established as a matter of course.
While the discriminatory aspect of persecution can be on account of a number of different personal characteristics, religious persecution amounts to one of the most prominent and underlying factors around the world.
Crimes against humanity, refugee, non-refoulement, Rome Statute, Refugee Convention, International Religious Freedom Act
Records of religious persecution date at least to the events in Egypt during the time of Moses. Religious minorities have faced persecution in a wide variety of contexts over the intervening millennia.
Colloquially, the term persecution based on one’s religion or belief is used to describe situations in which an individual’s human rights, as defined by the Universal Declaration of Human Rights and the international human rights treaties, are infringed upon on the basis of a person’s religious ideas or practices.
In the context of international human rights law, the term persecution gained wide usage in the middle of the 20th century. The Convention Relating to the Status of Refugees 1951 (“Refugee Convention”), which was the landmark international treaty to protect refugees in 1951, was established following a long history of international protection of refugees in customary law, and the first codified protection that was granted by the League of Nations. The backdrop to the League of Nations was the upheaval of individuals following World War 1 and its preceding and following wars such as in the Ottoman Empire. In particular, large numbers of individuals from Russia moved to Europe or Asia between 1918-1922, and Armenian refugees likewise moved borders around the same period of time. Resultingly, a High Commissioner for Refugees was established, and the League of Nations (1921 – 1946) also created several other institutions to provide relief to refugees.[2] The milestone Convention relating to the International Status of Refugees was established in 1933, and this treaty imposed obligations on third countries for the first time to protect Russian and Armenian refugees. Nine countries ratified the Convention at the time, and it penned the principle of non-refoulement into international law.
While this Convention did not include a reference to the word ‘persecution’, the Universal Declaration of Human Rights (“UDHR”) included a reference to persecution in relation to asylum in 1948. Article 14 of the UDHR provided, “Everyone has the right to seek and to enjoy in other countries asylum from persecution”, and this paved the way for the text of the Refugee Convention, which built upon the principles and application of the former Convention and the UDHR.
International criminal law has its most concrete origins in the International Military Tribunals of Nuremberg and Tokyo that were used to prosecute the atrocities committed by German and Japanese leaders of World War II, although there had been various proposals for an international court before this war.[3] Importantly, these Tribunals conferred individual criminal responsibility upon individuals and held that the orders handed down by superiors in the army did not constitute a defence to crimes. The Geneva Conventions 1949 and their Additional Protocols of 1977 created the “grave breaches” regime which later contributed towards the definition of war crimes within the Rome Statute.
In the early 1990s, the United Nations Security Council established ad hoc temporary criminal tribunals to prosecute individuals who had committed severe atrocities during the Balkans conflict and the break-up of the former Yugoslavia, and the ethnic conflict in Rwanda. Following the Rome Conference of the United Nations General Assembly which took place a few years later, the Rome Statute of the International Criminal Court 1998 (“Rome Statute”) was voted for by 120 countries. In 2002, the Rome Statute was ratified by 60 countries and entered into force.
The jurisdiction of the International Criminal Court is for the investigation and prosecution of genocide, crimes against humanity and war crimes committed after 1 July 2002. A bench of 18 judges presides over the Court, and the first Prosecutor was Mr Luis Moreno Ocampo of Argentina. The office of Prosecutor is currently held by Mr Karim A. A. Khan KC. Under the category of crimes against humanity, the concept of persecution is defined.
The United States’ International Religious Freedom Act of 1998 (as amended by the Frank R. Wolf International Religious Freedom Act of 2016) (IRFA) is the most wide-ranging national piece of legislation to combat persecution based on religion or belief and promote religious freedom internationally. The IRFA includes examples of what it calls “violations of religious freedom” and “particularly severe violations of religious freedom”. These violations can serve as a reasonable guide to the kinds of actions that might constitute persecution in international practice.
The IRFA’s “violations of religious freedom” include arbitrary prohibitions on, restrictions of, or punishment for peaceful religious assembly such as worship, preaching, and prayer, including registration requirements; speaking freely about one’s religious beliefs; changing one’s religious beliefs and affiliation; not professing a particular religion, or any religion; possession and distribution of religious literature, including Bibles; and raising one’s children in the religious teachings and practices of one’s choice. “Violations” also include, when committed on account of an individual’s conscience, non-theistic views, or religious belief or practice: detention, interrogation, imposition of an onerous financial penalty, forced labor, forced mass resettlement, imprisonment, forced religious conversion, forcibly compelling non-believers or non-theists to recant their beliefs or to convert, beating, torture, mutilation, rape, enslavement, murder, and execution. The term “particularly severe violations of religious freedom” follows standard definitions of “gross violations of internationally recognized human rights,” and means in the IRFA systematic, ongoing, and egregious violations of religious freedom, including violations such as torture or cruel, inhuman or degrading treatment or punishment; prolonged detention without charges; causing the disappearance of persons by the abduction or clandestine detention of those persons; or other flagrant denial of the right to life, liberty or the security of persons. These definitions are used by the U.S. government for reporting and sanctions purposes.
The regions where religious persecution is greatest are in the Middle East, Asia, and portions of Africa. As of 2023, the U.S. Commission on International Religious Freedom, a major religious freedom “watchdog” organization, reported the following countries as having egregious, ongoing and systematic violations of religious freedom: Afghanistan, Burma, China, Cuba, Eritrea, India, Iran, Nicaragua, Nigeria, North Korea, Pakistan, Russia, Saudi Arabia, Syria, Tajikistan, Turkmenistan and Vietnam. Other countries identified by USCIRF as featuring significant persecution include Algeria, Azerbaijan, Central African Republic, Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, Sri Lanka, Turkey and Uzbekistan.
Persecution occurs across a wide-variety of faith backgrounds, and can involve both state and non-state actors. Religious minorities within a region are at especially high risk of persecution. Many majority Muslim countries within these regions place severe restrictions on minority Muslim and non-Muslim faiths. Ahmadis, Bahais, Christians, and other faiths can face regular legal harassment, imprisonment, and societal violence. Blasphemy and apostasy laws are often wielded against members of these faiths, most notably in Pakistan, with potential draconian sentences and the threat of mob violence. Terrorist groups, such as the Taliban in Afghanistan, can make it virtually impossible for individuals to identify publicly as a religious minority. Very few Jews can safely live in many of these areas, and anti-semitic attacks have increased globally in recent years.
In China, the Chinese Communist Party (CCP) maintains strict control over religious groups, and persecutes religious groups that it views as out-of-step with CCP doctrine. This includes over a million Uyghur Muslims in the Xinjiang region, who have been imprisoned, tortured, experienced forced sterilizations and abortions, and placed into forced labor for years; as well as Christian groups that have been imprisoned and had their churches torn down; Falun Gong members who have faced widespread torture and imprisonment; and others. In Nigeria in West Africa, much of the worst persecution comes from Islamist terrorist groups and militants, such as Boko Haram and the Islamic State-West Africa, which attack Christians and Muslims who reject extremism in the Northern part of the country. Over 5,000 Christians were murdered in Nigeria in 2022 based on their faith, according to Open Doors.
International criminal law
Persecution was given a legal definition under the Rome Statute,[4] which has jurisdiction over individuals accused of genocide, war crimes, and crimes against humanity. This definition was built upon former judgments of international Tribunals, including the Tadić trial judgment of the International Criminal Tribunal for the former Yugoslavia (“ITCY”).[5]
Under Article 7 of the Rome Statute, a ‘crime against humanity’ means that certain acts have been committed as part of a “widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Article 7.1 of the Rome Statute). This includes “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender […] or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court” (Article 7.2(a) of the Rome Statute). ‘Persecution’ is further given the definition of “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity” (Art. 7.2(g) of the Rome Statute).
The Rome Statute outlines that a person’s ‘identity’ can include “political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law”. It is upon one of these factors that the persecution must be committed, in a discriminatory manner.
Under the legal definition, and in order to establish individual criminal liability upon the perpetrator or the crime, persecution comprises the following elements:
Actus reus
Violation of the following fundamental rights under international law have been deemed to fall within the scope of persecution - the right to life, liberty and the security of the person; the right not to be held in slavery or servitude; the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; and the right not to be subjected to arbitrary arrest, detention or exile.[6] To fall within the definition, the acts need to be “widespread” or “systematic”, which denotes a large-scale series of atrocities that, by nature, trigger the international community to be concerned.
Mens rea
The mental element of persecution under the crime against humanity is the deliberate “knowledge” of the attack by the perpetrator and “the intentional […] deprivation of fundamental rights” of the victims (under Article 7.2(g) of the Rome Statute).
To satisfy the criteria, the violation must occur against “any identifiable group or collectivity” and thus be discriminatory because of that identity (whether that be racial, national, religious, etc). The causal connection between the discriminatory factor and the persecution must be established.
Refugee law
Persecution accounts for a major reason for individuals to seek to leave their country of origin, as provided by the Refugee Convention. Under this Convention, a refugee is “every person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (Article 1 A (2) of the Refugee Convention). This wording has been adopted in domestic and regional refugee law, such as Article 2 (d) European Union Qualification Directive 2011 which outlines the responsibilities of European Union Member States in regard to accommodating individuals who have suffered persecution.[7] The link between persecution and asylum was also formerly made in the text of Article 14 of the UDHR.
However, there is no universally agreed definition of persecution under international refugee law; it is not defined in the Refugee Convention nor in any supplementary texts.[8] Nonetheless, it is customarily understood to be “the severe violation of human rights accompanied by a failure of the State to protect the individual”,[9] where human rights can be widely defined under international human rights law[10] so long as it meets the other threshold criteria.
States may have developed their own case law to address the matter of a definition of persecution, such as the judiciary of the United Kingdom in R v Immigration Appeal Tribunal, ex p Jonah [1985] Imm AR 7, where Nolan J referenced two dictionary definitions of persecution: ‘to pursue, hunt, drive’ and ‘to pursue with malignancy or injurious action; especially to oppress for holding a heretical opinion or belief’.[11] The European Union has moreover defined acts of persecution within Article 9 of the Council Directive 2004/83/EC as acts that are ‘sufficiently serious’ to constitute a ‘severe violation of basic human rights’. Under paragraph 2, persecution under Article 1 of the Refugee Convention can include the following (non-exhaustive) examples: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecutions or punishments which are disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict in some circumstances; or acts of a gender-specific or child-specific nature.[12]
Persecution in the context of refugee law can be composed of a series of violations or a single severe violation of a human right.
Once persecution or the well-founded “fear” of being persecuted has been satisfied, duties and obligations under the Convention are triggered by third States so as to provide protection for the individual. It is notable that the well-founded “fear” of persecution can include a subjective element, from the perspective of the victim;[13] it therefore does not necessarily need to satisfy the criminal element of mens rea on behalf of the perpetrator. The element of mens rea is moreover not required to establish persecution in refugee law because individual criminal liability does not need to be proven.
Perpetrator
In international criminal law, perpetrators are individuals to whom individual criminal responsibility can be attributed by international Tribunals or the International Criminal Court. Cases against potential perpetrators are investigated by the Court’s Prosecutor. In refugee law, the perpetrators of persecution are States or non-State actors, although the legal framework does not seek to attribute legal responsibility to the State as a consequence of the attacks. Instead, the framework places a responsibility on third States to act in situations of State or non-State persecution and the State’s failure or unwillingness to protect individuals.
Discriminatory aspect
Persecution, under both international criminal law and refugee law, must be on account of the victim’s personal characteristics and therefore be discriminatory to that victim. The crime of persecution relies upon grounds of “political, racial, national, ethnic, religious, gender […] or other grounds that are universally recognized as impermissible under international law”. Under refugee law, the violation must be on the grounds of “race, religion, nationality, membership of a particular social group or political opinion” (Article 1 A(2) of the Refugee Convention).
The United Nations Human Rights Council (“UNHRC”) defines religious grounds as theistic, non-theistic, and atheistic beliefs, in alignment with a reading of Article 18 of the International Covenant on Civil and Political Rights. As for ‘beliefs’, these could be “convictions or values about the divine or ultimate reality or the spiritual destiny of humankind”.[14] Persecution could therefore be on the grounds of membership of a religious community, or due to an individual’s worship in private or public. The discriminatory treatment could also be imposed because an individual practises their religion or belongs to a religious community.
Adjudication
International criminal law is the body of law that is applied before international courts and tribunals. The International Criminal Court stands as the only permanent international judicial body that is competent to try individuals for crimes against humanity, and the Prosecutor has had jurisdiction to prosecute individuals from 2002 onwards. In order to make an assessment of crimes against humanity, of which persecution is an element, the Prosecutor must make a preliminary examination in order to determine whether to conduct a full investigation. This can be initiated by a referral from an individual, intergovernmental organization, or non-governmental organization; one of the State Parties to the Rome Statute or the UN Security Council; or a State who is not a party to the Rome Statute but yet accepts the Court’s jurisdiction. The Prosecutor will then follow a process to make a determination whether to progress the file towards the Court. It is to be noted that a trial at the International Criminal Court is considered to be a matter of last resort by the Prosecutor; the Rome Statute provides, “the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions” (Article 1 of the Rome Statute).
In international refugee law, the Refugee Convention does not define how States parties should determine whether an individual meets the criteria of being persecuted and being a refugee; each party ought to develop their own system of asylum proceedings and refugee determination processes. This inevitably results in a range of interpretations of persecution between States and their willingness to protect individuals who have had to flee their home countries.
Obligations on third States
In refugee law, States are under obligations and duties to respond to persecution. The principle of non-refoulement means that States are not permitted to refuse or expel a person by force back to a country where they fear persecution. Article 33.1 of the Refugee Convention provides that States parties cannot refoule refugees to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. This obligation is, however, relinquished by States if the refugee poses a danger to the national security of the host country or, where they have been convicted of a particularly serious crime, they constitute a danger to the host community (under Article 33.2 of the Refugee Convention).
UNHCR, Guidelines on International Protection: Religion Based Refugee Claims under Article 1 A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, HCR/GIP/04/06, 2004
UNHCR, UNHCR’s Views on Gender-Based Asylum Claims and Defining “Particular Social Group” to Encompass Gender, 2016
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, HCR/1P/4/ENG/REV. 4, 2019
U.S. Commission on International Religious Freedom, Annual Report (2023)
Zimmermann, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, 2011
Open Doors, World Watch List 2023
Cases:
International Criminal Court, Confirmation of Charges Decision of 9.6.2014 – ICC-01/04-02/06 (The Prosecutor v. Bosco Ntaganda)
ICTY, Trial Judgement of 7.5.1997 – IT-94-1-T (Prosecutor v. Duško Tadić)
ICTY, Trial Judgement of 3.3.2000 – IT-95-14-T (Prosecutor v. Tihomir Blaškić)
R v. Secretary of State for the Home Department, Ex parte Celal Yureki, [1990] Imm AR 334, United Kingdom: High Court (England and Wales), 15 February 1990
Law:
Council Directive 2004/83/EC
European Union Qualification Directive 2011
Universal Declaration of Human Rights 1948
Convention Relating to the Status of Refugees 1951
Rome Statute of the International Criminal Court 1998
International Convention on the Elimination of All Forms of Racial Discrimination 1965
International Religious Freedom Act of 1998 (as amended by Frank R. Wolf International Religious Freedom Act of 2016) (Public Law 105–292, as amended by Public Law 106–55, Public Law 106–113, Public Law 107–228, Public Law 108–332, and Public Law 108–458) (United States)
Kelsey Zorzi serves as Director of Advocacy for Global Religious Freedom with ADF International. She leads litigation and advocacy efforts to counter global persecution against Christians and other religious minorities. Based in Washington, D.C., Zorzi engages with a multinational network of attorneys, government officials, and international bodies. In 2018, she was elected president of the United Nations’ NGO Committee on Freedom of Religion or Belief.
Zorzi earned her J.D. at the George Washington University Law School, where she participated in the GW-Oxford International Human Rights Law Program. She is admitted to the state bars in New York, New Jersey, and Connecticut.
Her work has appeared in several scholarly journals and media publications including The Washington Post and The Wall Street Journal.
[1] Open Doors, World Watch List 2023
[2] See the Nansen International Office for Refugees (1931-1938), the Office of the High Commissioner for Refugees coming from Germany (1933-1938), the Office of the High Commissioner of the League of Nations for Refugees (1939-1946) and the Intergovernmental Committee on Refugees (1938-1947)
[3] For example, Article 227 of the Treaty of Versailles proposed the establishment of an international court to try the perpetrators of World War I
[4] Entry into force was 1 July 2022
[5] ICTY, Trial Judgement of 7.5.1997 – IT-94-1-T (Prosecutor v. Duško Tadić), para. 697
[6] ICTY, Trial Judgement of 3.3.2000 – IT-95-14-T (Prosecutor v. Tihomir Blaškić), para. 220. The rights referred to are to be found at articles 3, 4, 5, 9 of the Universal Declaration on Human Rights 1948
[7] As a result of this Directive, EU Member States have adopted domestic law in line with the 1951 Refugee Convention. For example, in France, Article L711-1 Ceseda (“persécutée”) has explicit reference to the Refugee Convention. In Italy, Art. 7 of the Qualification Decree (“persecuzione”) also has explicit reference to Art. 1 (A) of the Refugee Convention. In Germany, see § 3 (1) Nr. 1 AsylG (“Verfolgung”).
[8] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, HCR/1P/4/ENG/REV. 4, 2019, para. 51
[9] Zimmermann, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, 2011, para. 216
[10] The categories of human rights that can be violated are wider than under international criminal law and can include impairment of the right to due process (article 14 of the ICCPR); freedom of thought, conscience and religion (article 18 of the ICCPR); and freedom of expression (article 19 of the ICCPR)
[11] R v. Secretary of State for the Home Department, Ex parte Celal Yureki, [1990] Imm AR 334, United Kingdom: High Court (England and Wales), 15 February 1990
[12] Article 9(2) of the Council Directive 2004/83/EC
[13] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, HCR/1P/4/ENG/REV. 4, 2019, paras. 37–40
[14] UNHCR, Guidelines on International Protection: Religion Based Refugee Claims under Article 1 A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, HCR/GIP/04/06, 28 April 2004, para. 6
