Framework for Communications - III 3
Convention relating to the Status of Refugees
Art. 4: "The Contracting State shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their
Art. 33: "No Contracting State shall expel or return (' refouler ') a refugee in any manner whatsoever 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."
General Assembly resolution 65/211
"8. Recognizes with concern the situation of persons in vulnerable situations, including […] refugees, asylum-seekers and internally displaced persons […], as regards their ability to freely exercise their right to freedom of religion or belief;"
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Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)
A/62/280, paras. 38-63:
Situation of refugees, asylum-seekers and internally displaced persons
1. Cases addressed previously by the mandate
38. The mandate frequently receives reports of the violation of the right to freedom of religion or belief of refugees, asylum-seekers and internally displaced persons, who have fled their s or have been expelled from their own country. For illustrative purposes, a non-exhaustive list of cases raised previously with Governments concerning these individuals or groups is given below. Past communications have not always sought to categorize cases strictly. In particular, it is noted that a person is a refugee within the meaning of the 1951 Convention relating to the Status of Refugees as soon as he/she fulfils the criteria contained in the definition, which would necessarily occur prior to the time at which refugee status is formally determined. [See UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (HRC/IP/4/Eng/rev.1), January 1992, para. 28.]
39. In 2002, the Special Rapporteur wrote to the Government stating that since the 2001 elections religious minorities, especially Hindus, had been victims of repeated attacks, including dozens of killings and the rape of Hindu girls. Hundreds of families had reportedly been expelled from their land and had found refuge in India, and numerous attacks on Hindu temples were reported. [A/57/274, paras. 17-20 and Government’s reply in E/CN.4/2003/66, para. 17.]
40. In a letter addressed to the Government in 1994, the Special Rapporteur expressed concern that Christianity was allegedly banned and Christians were reportedly ill-treated, and that some Christians were reported to have been expelled in 1993 and to have sought refuge in Nepal. [E/CN.4/1995/91, communication and Government’s reply, p. 21.]
41. Several communications were sent to the Government regarding inter-religious clashes between Hindus and Muslims in Gujarat, leaving many dead. A communication sent in 1993 to the Government raised the cases of 250,000 Hindus who had been forced to flee their s to camps in northern India and of 50 temples damaged in the course of the conflict. [E/CN.4/1994/79, para. 55 and Government’s reply, para. 56.]
42. Several communications were sent to the Government regarding the forced conversion of Christians on the islands of Keswui and Teor in the Moluccas (in the context of violence which also left thousands dead and created hundreds of thousands of internally displaced persons) and attacks on Christians, including destruction of their places of worship in Ambon. [A/56/253, paras. 43-45 and Government’s reply, para. 46.]
43. A communication sent in 2006 to the Government concerned a citizen of Uzbekistan living in Kazakhstan who was recognized as a refugee under the 1951 Convention on religious grounds. He was reportedly at risk of being returned to Uzbekistan. [A/HRC/4/21/Add.1, paras. 211-213; no reply from the Government.]
44. A communication sent in 1992 addressed to the Government expressed concern that 280 refugees from Mozambique who were followers of the Jehovah’s Witnesses faith had been expelled from Malawi for reportedly expressing their religious beliefs to others. [E/CN.4/1993/62, para. 43; no reply from the Government.]
45. In 1992, a letter was sent to the Government concerning the Rohingya citizens of Myanmar who, as Muslims, were reportedly subjected to extrajudicial execution, torture, arbitrary detention, forced disappearances, displacement, and the destruction of towns and mosques. Some 300,000 Rohingyas were reported to have fled to Bangladesh by the end of April 1992 and several thousand were said to have been killed by border guards. [E/CN.4/1993/62, para. 45 and Government’s reply, para. 46.]
(h) Saudi Arabia
46. In 1994, in a communication to the Government, the Special Rapporteur raised concerns that Iraqi refugees in the Rafha camp were subjected to restrictions on their religious freedom. The camp occupants were reportedly split up according to their religious beliefs and a document claiming that the Shiites were apostates and should be converted to Sunni Islam was said to have been circulated in the camp. [E/CN.4/1995/91, pp. 16 ff.; no reply from the Government.]
(i) Sri Lanka
47. In several communications sent to the Government the issue of attacks on places of worship resulting in deaths and injuries, as well as the expulsion of all Muslims by the Liberation Tigers of Tamil Eelam from areas under their control were raised. [E/CN.4/1995/91, pp. 81-82 and Government’s reply, pp. 82 ff.]
48. In his country report on the Sudan, the Special Rapporteur noted that in camps for internally displaced persons, mainly in the Khartoum area, the authorities had prohibited unauthorized places of worship for non-Muslims and had proceeded to demolish tents and buildings without providing compensation. [A/51/542/Add.2, para. 87 and Government’s reply, para. 89.]
(k) United Kingdom of Great Britain and Northern Ireland
49. In 2005, several mandate holders sent a joint urgent appeal concerning a national of China who was at risk of imminent forcible return following the rejection of his asylum application. He had allegedly been involved in Falun Gong activities prior to his arrival as a student in the United Kingdom and continued to be involved, including in protests against the persecution of Falun Gong practitioners in front of the Chinese consulate in Manchester. In view of allegations of ill-treatment in his country and threats relating to his practice of Falun Gong, the mandate holders expressed concern that he might be at risk of torture or other forms of ill-treatment should he be returned. [E/CN.4/2006/5/Add.1, paras. 390-391 and Government’s reply, para. 392.]
(l) Viet Nam
50. Several communications were sent in 2003 and 2004 to the Government concerning a Vietnamese monk recognized as a refugee in Cambodia who was returned to Viet Nam and convicted on charges of fleeing abroad to oppose the Government, having been a member of the outlawed Unified Buddhist Church of Viet Nam. [Summary of the exchange of letters in E/CN.4/2004/63, paras. 101-102 and E/CN.4/2005/61/Add.1, paras. 348-350.]
51. A letter was sent in 2000 to the Government concerning a Somali refugee resident in Yemen who was reportedly condemned to death by a court for apostasy, although the court stated that the death sentence would not be carried out if he reconverted to Islam. He was subsequently expelled from the territory of Yemen as an alternative to the continuation of the Yemeni trial proceedings on charges of apostasy. [E/CN.4/2001/63, para. 147 and Government’s reply, para. 148.]
2. Legal framework
52. Universal human rights set out in the Universal Declaration of Human Rights of 1948, including the right to freedom of religion or belief, apply to all human beings everywhere. In addition, refugees have specific rights and duties in their country of refuge according to international refugee law.
53. The term “refugee” as defined in article 1 A (2) of the 1951 Convention (as amended by the 1967 Protocol) means any person who, “owing to 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, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”. A person who is seeking to be recognized as a refugee is an asylum-seeker. Article 4 of the 1951 Convention provides: “The Contracting State shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children”. Furthermore, article 33 of the 1951 Convention outlines the obligation of non-refoulement: “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever 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.” No reservation is permitted to either article 4 or article 33 of the 1951 Convention.
54. The term “internally displaced persons” refers to persons or groups of persons who have been forced or obliged to flee or to leave their s or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border. The Guiding Principles on Internal Displacement (E/CN.4/1998/53/Add.2) set out a basic normative framework, applying the provisions of international human rights and humanitarian law, as well as refugee law by analogy, to victims of internal displacement. Principle 5 provides that “[a]ll authorities and international actors shall respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid conditions that might lead to displacement of persons”. The Principles “shall be applied without discrimination of any kind, such as … religion or belief” (principle 4). Internally displaced persons, whether or not they are living in camps, shall not be discriminated against, as a result of their displacement, in the enjoyment of “the rights to freedom of thought, conscience, religion or belief, opinion and expression” (principle 22). Furthermore, “[e]ducation should respect their cultural identity, language and religion” (principle 23).
3. Interpretative framework for refugee claims based on religion
55. In this section, the Special Rapporteur would like to highlight the existing interpretative framework for refugee claims based on religion. In 2004, the Office of the United Nations High Commissioner for Refugees (UNHCR) issued “Guidelines on international protection: religion-based refugee claims under article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees” (“the Guidelines”, HRC/GIP/04/06). The Guidelines note that although religion was not defined in the 1951 Convention, its use can be taken to encompass freedom of thought, conscience or belief by reference to the pertinent international human rights standards. Furthermore, the Guidelines explain that claims based on religion may involve one or more of the elements of “religion as a belief”, “religion as an identity” and “religion as a way of life” (paras. 5-8). The term “belief” is interpreted in the Guidelines to include theistic, non-theistic and atheistic beliefs. [A general discussion of theistic, atheistic and non-theistic beliefs can be found below in section III. B.] In the context of establishing an asylum-seeker’s “religion or belief”, the Guidelines provide that it may not be necessary for him or her to know or understand anything about religion if he or she has been identified by others as belonging to that group and fears persecution as a result.
56. The Guidelines distinguish between persecution and discrimination, since the latter may not necessarily rise to the level required for recognition as a refugee. A distinction is made between discrimination resulting merely in preferential treatment and discrimination amounting to persecution because, in aggregate or of itself, it seriously restricts the claimant’s enjoyment of fundamental human rights. They also provide that the existence of discriminatory laws will not normally in itself constitute persecution. Moreover, an assessment of the implementation of such laws (for example regarding apostasy or blasphemy) and their effect is in any case crucial to establishing persecution. An age, gender and diversity analysis of the impact of the human rights violation feared on the individual concerned is also necessary (paras. 17-19).
57. The Guidelines provide that persecution for reasons of religion may therefore take various forms. Depending on the particular circumstances of the case, including the effect on the individual concerned, examples could include prohibition of membership of a religious community, of worship in community with others in public or in private, of religious instruction, or serious measures of discrimination imposed on individuals because they practise their religion, belong to or are identified with a particular religious community, or have changed their faith. Equally, in communities in which a dominant religion exists or where there is a close correlation between the State and religious institutions, discrimination on account of one’s failure to adopt the dominant religion or to adhere to its practices, could amount to persecution in a particular case. Persecution may be inter-religious (directed against adherents or communities of different faiths), intra-religious (within the same religion, but between different sects, or among members of the same sect), or a combination of both. The claimant may belong to a religious minority or majority. Religion-based claims may also be made by individuals in marriages of mixed religions (para. 12).
58. The Special Rapporteur has referred to the right to conscientious objection to military service on numerous occasions when examining the application of domestic legislation vis-à-vis persons in their countries of origin seeking to exercise such a right. This right is also addressed by the Guidelines in the slightly different context of when a refusal to perform military service may give rise to a well-founded fear of persecution for the purposes of the 1951 Convention. Citing provisions of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, [See UNHCR Handbook, op. cit., para. 170.] the Guidelines provide that refugee status may be established if the refusal to serve is based on genuine political, religious, or moral convictions, or valid reasons of conscience. A law of general application may be persecutory where it impacts differently on particular groups, where it is applied in a discriminatory manner, or where the punishment is excessive or disproportionately severe or where it cannot reasonably be expected to be performed by the individual because of his or her genuine beliefs or religious convictions (para. 26). [See also ibid., para. 169.] Alternatives to community service would not usually be the basis of a claim unless they are so excessively burdensome as to constitute a form of punishment (ibid.).
59. Under international human rights law the legal basis of the right to conscientiously object may derive from article 18 of the International Covenant on Civil and Political Rights. The Human Rights Committee affirmed that “the Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief”. [Human Rights Committee, general comment No. 22 (1993), reprinted in HRI/GEN/1/Rev.8, sect. II (para. 11). See also the views of the Human Rights Committee concerning communications Nos. 1321/2004 and 1322/2004 (Yeo-Bum Yoon and Myung-Jin Choi v. Republic of Korea) (CCPR/C/88/D/1321-1322/2004)]. In 1998, the Commission on Human Rights encouraged States, subject to individuals satisfying the requirements of the definition of a refugee as set out in the 1951 Convention, “to consider granting asylum to those conscientious objectors compelled to leave their country of origin because they fear persecution owing to their refusal to perform military service when there is no provision, or no adequate provision, for conscientious objection to military service. [Official Records of the Economic and Social Council, 1998, Supplement No. 23 (E/1998/23), chap. II, sect. A, resolution 1998/77, para. 7.] Furthermore, international and regional organizations have pointed out that persons performing military service may develop conscientious objections over time. [Ibid., preamble. See also the Special Rapporteur’s observations in E/CN.4/2006/5/Add.1, paras. 138-139 as well as Parliamentary Assembly of the Council of Europe recommendation 1518 (2001), para. 5 (i).]
60. A report by the Office of the United Nations High Commission for Human Rights on best practices in relation to conscientious objection (E/CN.4/2006/51, para. 58) states:
UNHCR has observed that a significant number of States are ready to provide international protection to conscientious objectors, draft evaders and deserters. States have recognized that conscientious objection, which may, inter alia, be expressed through draft evasion and desertion, can arise from a political opinion or a religious belief, that conscientious objection can in itself be regarded as a form of political opinion and, more rarely, that objectors or a particular class of them can constitute a particular social group.
61. Forced conversion to a religion is a serious violation of the fundamental human right to freedom of thought, conscience and religion. According to the Guidelines, forced conversions would often satisfy the objective component of persecution but the claimant would still need to demonstrate a subjective fear that the conversion would be persecutory to him or her personally, for example if he or she had a clear identity or way of life in relation to a different religion or had chosen to be disassociated from any religious denomination or community (para. 20).
62. Under the subheading “Forced compliance or conformity with religious practice” the Guidelines consider, for example, mandated religious education that is incompatible with the religious convictions, identity or way of life of the child or the child’s parents, and an obligation to attend religious ceremonies or swear an oath of allegiance to a particular religious symbol. The Guidelines state that such examples of forced compliance could amount to persecution if it becomes an intolerable interference with an individual’s own religious beliefs, identity or way of life and/or if non-compliance would result in disproportionate punishment (para. 21).
63. Individuals converting after their departure from their country of origin may have the effect of creating a refugee sur place claim. The Guidelines provide that in those circumstances particular credibility concerns tend to arise and a rigorous in-depth examination of the circumstances and genuineness of the conversion will be necessary. Self-serving activities do not create a well-founded fear of persecution on a Convention ground if the opportunistic nature of the activities will be apparent to all and serious adverse consequences would not result if the person were returned. The critical assessment is whether the claimant has a well-founded fear of persecution at the time of the examination of the claim and what the consequences of return to the country of origin would be (paras. 34-36). The Special Rapporteur has recently emphasized (see A/HRC/6/5, para. 31) that a post-departure conversion should not give rise to a presumption that the claim is fabricated and the immigration authorities should evaluate the genuineness of the conversion on a case-by-case basis taking into account the applicant’s past and present circumstances."
E/CN.4/2005/61, para. 17:
"17. The legal framework includes principles specified in: [...] (g) The Convention relating to the Status of Refugees, in particular article 4, which provides that refugees will be given treatment at least as favourable as that of nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children and article 33, which prohibits the expulsion of a refugee to a country where his life or freedom would be threatened on account of his or her religion;"
A/64/159, paras. 22-24 and 67:
“22. The mandate has also reported about the vulnerable situation in terms of freedom of religion or belief of refugees, asylum-seekers and internally displaced persons, who have fled their homes or have been expelled from their own country. [See A/62/280, paras. 38-63, A/62/280/Corr.1 and A/HRC/6/5, paras. 30-31.] The Special Rapporteur notes that whereas the refugee definition in the 1951 Convention relating to the Status of Refugees refers to “well-founded fear of being persecuted for reasons of […] religion”, the approaches taken seem to differ significantly in applying the term “religion” or when determining what constitutes “persecution” in this context. The Special Rapporteur has received reports indicating that some asylum adjudicators ask faith-testing questions with doubtful validity or limited justification. In this regard, the Special Rapporteur would like to remind that the risk of persecution is not necessarily dependent on detailed substantive knowledge of the applicant’s religion because individuals may also find themselves persecuted for imputed religious beliefs.
23. The Special Rapporteur would like to emphasize that religion-based refugee claimants should not be expected by asylum adjudicators to hide their religion or to practise in secret in their countries of origin in order to avoid persecution. It is an integral part of the right to freedom of religion or belief to be able to manifest, publicly and in community with others, one’s religion or belief in worship, observance, practice and teaching. The Special Rapporteur also shares the concerns that the concept of internal flight alternative can sometimes prove particularly problematic for religion-based asylum claims and might ultimately lead to undesirable segregation of religious groups in particular areas of the countries of origin.
24. Another particular problem in terms of freedom of religion or belief may arise for those persons who, after having arrived in the country where they are seeking asylum, convert to a religion which would make them prone to persecution in their country of origin if they were to be returned. In the assessment of such asylum applications, suspicions often arise regarding the sincerity and credibility of asylum claims. However, the Special Rapporteur would like to reiterate that such post-departure conversion should not give rise to a presumption that the claim is fabricated, and the immigration authorities should evaluate the genuineness of the conversion on a case-by-case basis taking into account the specific past and present circumstances of the applicant. [...]
67. Refugees, asylum-seekers and internally displaced persons also find themselves in a situation of particular vulnerability. The Special Rapporteur would like to refer to paragraph 80 of the outcome document of the Durban Review Conference which reiterates that the national, regional and international response and policies, including financial assistance, towards refugee and internal displacement situations in different parts of the world, should not be guided by any form of discrimination prohibited by international law. For the whole asylum determination process it seems crucial to have accurate, objective and up-to-date information on the countries of origin of asylum-seekers and on any past or present religious persecution. The Special Rapporteur would like to emphasize that asylum adjudicators should not exclusively base their decisions on preselected sources, especially when the situation in the country of origin or the region in question has allegedly changed since they were last updated. Furthermore, the Special Rapporteur would like to emphasize that well-trained, reliable and impartial interpreters are needed for asylum interviews in order to avoid serious disadvantages for the asylum-seekers.”
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