Crimes against humanity are one of four atrocity crimes defined in international law.[1] The first prosecution for crimes against humanity happened after the Second World War. It was underpinned by the belief that certain crimes are an affront to the very conscience of mankind. The international community sought to ensure there would be no impunity for crimes that violate the essence of human dignity.
One of them is the crime of persecution.
Persecution – a crime against humanity.
Jurisprudence on crimes against humanity was developed by two ad hoc tribunals created by the United Nations Security Council: the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR).
The Rome Statute of the International Criminal Court (ICC Statute) offered a new definition of crimes against humanity and granted the ICC jurisdiction over them. Article 7 of the Statute states that persecution constitutes a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The ICC further developed the Elements of Crimes to clarify the content of crimes against humanity.
The lay definition of persecution
Common use of the word ‘persecution’ differs from the legal definition in the ICC Statute and the Elements of Crimes. The legal academic Cherif M. Bassiouni compiled dictionary definitions of persecution from 16 countries and summarised them as: “State action or policy leading to the infliction upon an individual of harassment, torment, oppression, or discriminatory measures, designed to or likely to produce physical or mental suffering or economic harm, because of the victim’s beliefs, views, or membership in a given identifiable group (religious, social, ethnic, linguistic etc.), or simply because the perpetrator sought to single out a given category of victims for reasons peculiar to the perpetrator.”[2]
Why is it important that we do not confuse the two?
Crimes against humanity are the gravest of human rights violations. They threaten the stability of the international community because they are committed “as part of a widespread or systematic attack on a civilian population.” Thus, they move beyond impacting the individual alone, and threaten “the minimum standard of the rules of human coexistence.”[3]
Using ‘persecution’ to describe violations of freedom of religion or belief (FoRB) which do not meet the criteria of “widespread or systematic attack”, wrongly implies that every FoRB violation, or perceived violation, is a threat to international peace and security, and is a crime against humanity.
The threshold of severity is high
To satisfy the legal definition of the crime of persecution, the deprivation of fundamental rights must be severe. This threshold of severity means that not every violation of FoRB will constitute persecution.
For example, the destruction of a Christian’s property does not constitute persecution despite the presence of discriminatory intent i.e. the state – or non-state actors – destroying the property because the individual is a Christian. However, if the attacks on property are serious enough to destroy the economic livelihood of a part of the population, the severity requirement would be satisfied.[4] Furthermore, the destruction of places of worship may fulfil the severity threshold if there are serious effects on a strongly religious population,[5] or if it is part of a deliberate policy targeting a religious community with a view to controlling or ending religious expression.
Failing to use ‘persecution’ correctly when describing FoRB violations imbues less serious violations with a notion of severity that is neither present nor appropriate, which can be easily dismissed, often to the detriment of individuals and communities that are experiencing religious discrimination or harassment that may be precursors to genuine persecution.
In the course of CSW’s work, we see a range of FoRB violations, from discrimination, harassment and intimidation, to suppression of activities associated with a religion or belief, the deprivation of liberty, economic and social rights, associated civil and political rights, genocide, war crimes, ethnic cleansing and crimes against humanity, including religious persecution.
CSW strives to use the word persecution solely in connection with situations meeting the threshold of the crime as defined in international law.
There are a few recognised, high profile cases of religious persecution. In 2016, a UN Commission of Inquiry on Eritrea found “reasonable grounds to believe” that crimes against humanity have been committed by state officials in a “widespread and systematic manner” since 1991, including the crime of persecution against religious and ethnic groups. Other recognised atrocity crimes include the genocide of the Yazidis in Syria, which had ethnoreligious elements; or the campaign of violence against the predominantly Muslim Rohingya people in Myanmar (Burma), which the UN High Commissioner for Human Rights described as ‘a textbook example of ethnic cleansing’.
Additionally, there are situations where religious persecution is suspected or alleged, but is yet to be investigated or confirmed. In such cases, religious persecution and other crimes against humanity necessitate legal redress through the International Criminal Court or other legal mechanisms.
A case to answer
The term persecution should not be used lightly. It is important to restrict its use to situations that amount to a crime against humanity. Using it liberally undermines perceptions of the severity of the crime.
When the term is used incorrectly or carelessly, it confuses scenarios requiring justice through the international legal system with those that do not. It risks diluting rightful calls to international justice.
Moreover, since persecution emerges progressively, with several early warning signs before full-blown persecution sets in, loose application of the term also undermines efforts to draw attention to and address emerging situations prior to the full onset of the crime of persecution.
By Joanne Collins, CSW’s Parliamentary Officer
Cover Image: “International Criminal Court Building” by theglobalpanorama is licensed under CC BY-SA 2.0
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[1] The other Atrocity Crimes are Genocide, War crimes and Ethnic Cleansing
[2] Cherif M. Bassiouni, Crimes Against Humanity in International Criminal Law (2nd ed) (The Hague: Kluwer Law International, 1999) at 327. Bassiouni relied on: Arabic, Danish, Dutch, English, French, German, Greek, Hungarian, Italian, Japanese, Norwegian, Polish, Portuguese, Romanian, Russian, Spanish, Swedish, and Turkish sources. This definition of crimes of persecution was discussed in great detail in Prosecutor v. Dusko Tadić, Case No. IT-94-1, ICTY Opinion and Judgment, 7 May 1997 paragraph 695.
[3] Stated explicitly by H.-H. Jescheck, ‘Gegenstand und neueste Entwicklung des internationalen Strafrechts’, in F.C. Schroeder and H. Zipf (eds), Festschrift Maurach (1972), 579, at 590 (translated from German).
[4] Kupreškić et al., ICTY (TC), judgment of 14 January 2000, para. 631. See also Tadić, ICTY (TC), judgment of 7 May 1997, para. 707
[5] Kordić and Čerkez, ICTY (TC), judgment of 26 February 2001, para. 207; Krajišnik, ICTY (TC), judgment of 27 September 2006, paras 781 et seq.; Milutinović et al., ICTY (TC), judgment of 26 February 2009, paras 204 et seq.; Ðorđević, ICTY (TC), judgment of 23 February 2011, paras 1770 et seq.
FoRB in Full 