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Tydskrif vir Geesteswetenskappe

versión On-line ISSN 2224-7912
versión impresa ISSN 0041-4751


BOTHA, Christo  y  NEL, Werner. The role of religious identity in determining the "mode ofpersecution" for crimes against humanity. Tydskr. geesteswet. [online]. 2021, vol.61, n.1, pp.128-154. ISSN 2224-7912.

In the context of international criminal law and its nexus to the protection of human rights, a "religious group" is considered a "protected group", and an adherent's resultant "religious identity" is a "protected ground" of human existence. Consequently, serious measures of discrimination imposed on persons for reasons of their religious identity constitute a severe deprivation of fundamental human rights, and establish the individual criminal responsibility of the instigators for religious persecution as a crime against humanity ("grievous religious persecution") in terms of the Rome Statute of the International Criminal Court (ICC). The inherent problem is that persecution on the basis of religion is not the only mode or ground of persecution criminalised by the Rome Statute, nor does it usually constitute the only ground for persecution in any specific situation. The mode or ground of persecution, or the multiplicity thereof, is based on a protected aspect of the victim's identity, which made him or her the target of the persecutor's discriminatory intent in the first instance. Therefore, religious persecution must be recognised and differentiated from other modes of persecution. In this regard, an assessment of the role that an individual or collective religious identity has in relation to the persecutor's discriminatory intent in any given situation, is essential for determining the mode of persecution. However, the complexity of human identity often makes it difficult to identify the specific basis causing the perpetrator to select and target his victims in a discriminatory manner. A person's identity comprises multiple "identifiers", including religion. "Religious identity" is best understood in the context of the right to freedom of "thought, conscience, religion or belief". In general, "religious identity" relates to the derivative effect of holding a certain deep existential view, which becomes part of their identifying label, whether in a person's own mind or that of others, or in terms of social standing. This fundamental right to one's individual or communitarian identity is a core aspect of protection against discrimination and unequal treatment under international human rights law. In relation thereto, the discriminatory nature of persecution signifies that a person is reduced to their identification or an identifying element, and deliberately targeted for discriminatory treatment. Religious persecution is distinguishable from other modes of persecution based on the primacy of the victim's religious identity, which resulted in him or her becoming the target of the persecutor's discriminatory intent. Consequently, the perpetrator's discriminatory mindset and his subjective perception of the victim's religious identity are the most crucial elements in establishing the ground of persecution. However, a person's "religious identity" is not limited to mere identity semantics, but may have a number of important functions and consequences. Firstly, a religious identity may inspire an adherent's conception of life and inner consciousness (i.e. religion as a belief - deep existential view). Secondly, a religious identity may influence an adherent's sense of personal or collective identity and belonging (i.e. religion as an identifying element). In the context of religious persecution, this means that a victim's religious identity becomes the identifying factor for which he or she is discriminatively targeted. Lastly, a religious identity may affect concomitant individual or communitarian ideologies and practices, which may influence or even dictate an adherent's way of life and how they relate to, or perceive others (i.e. religion as a way of life). While most religious identities impose a commitment to a belief and the exercise of religious behaviours contributing to a positive sense of moral behaviour, other religious identities may be the root cause of manifestations of intolerance, discrimination and persecution in instances where a religious ideology negatively motivates interaction. In this regard, it is crucial to differentiate, where applicable, between religiously motivated persecution (persecution in the name of religion), and religious persecution (persecution on the basis of religious identity). By itself, a persecutor's "religious motive" does not necessarily imply that the persecutor's conduct is directed at targets because of their religious identity. Thus, persecution is committed and justified in the name of the persecutor's self-righteous religious identity, yet his persecutory conduct may be directed at any collective cause, belief, and/or identity that threaten his self-righteous aspirations. In such instances, the relevant ground of persecution will depend on the group or identity that is discriminatively targeted, which may be, for example, homophobic, xenophobic or otherwise. Thus, religiously motivated persecution may very well intersect with other grounds of persecution. In such instances, religiously motivated persecution is distinguishable from, and does not constitute, religious persecution. Religious persecution is a form ofpersecution in terms of which the "religious identity" of those persecuted constitutes the primary or predominant reason for their suffering. In order to assess the nexus between the victim's religious identity and the persecutory conduct, the point at issue is whether the victim's religious identity was the primary factor resulting in him or her becoming a target of discrimination and persecution. If one were to ignore the victim's religious identity, does the basis of discrimination and persecution also disappear, or not? Depending on the result, religion may constitute the primary basis for persecution, or it may amount to an auxiliary factor. The required nexus is satisfied if the perpetrator, at the time of committing the persecutory acts, specifically targeted the victim based on his/her actual, perceived, or assigned religious identity. The primacy of the persecutor's religious discriminatory mindset is the core aspect that determines or contextualises persecutory acts as religious persecution. Such a discriminatory intent may be directed at a person, identifiable group or collectivity with a particular religious identity ("specific religious discriminatory intention"), or that lack an accepted religious identity ("negative religious discriminatory intention"), either based on objective criteria or in the mind of the accused, provided that such a religious discriminatory intent constituted the primary (not necessarily exclusive) basis for targeting those victims. Thus, its quintessential nature requires that religious persecution must be based on religious discriminatory intent, which may be provided through proof of a direct or inferred discriminatory intent. The inference is therefore that in terms of international criminal law, religious persecution is an accurate classification of the context of persecutory conduct if the victim's "religious identity", whether actual, perceived or assigned, was the primary basis for discrimination, regardless of the persecutor's motive for such conduct and irrespective of the existence of other possible intersecting identifiers. Based on this reasoning, it may be possible to identify "religious identity" as the specific ground of persecution in a given situation, provided that it is possible to acquire proof of a religious discriminatory intent on the part of the persecutor; and that the discriminatory intent is sufficiently tethered to the victim's identifiable religious identity, or lack thereof. Thus, classifying a situation as religious persecution requires an understanding of the victim's religious identity and how it relates to the perpetrator's discriminatory mindset. An assessment of the role of religious identity in a given situation is therefore essential in order to determine the mode of persecution.

Palabras clave : international criminal law; international human rights law; the right to freedom of thought, conscience, religion or belief; International Criminal Court; modes of persecution; crimes against humanity resulting from religious persecution ("grievous religious persecution"); counteracting impunity for religious persecution; religious identity, religious discrimination; religiously motivated persecution.

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