Introduction: Apostasy is conversion to another religion or simply renouncing ones own religion. The Greek word used is ‘apostasia’, meaning ‘a falling away, defection, forsaking’. It can found a claim for refugee status if penalised severely (formally or informally), giving rise to a well-founded fear of persecution for reasons of religion. Apostasy can occur in relation to any religion, but currently, in the context of refugee law, it is generally used in relation to Islam. This is because in some Islamic countries, the penalty for apostasy is death. A Shi’ite Muslim pronouncement on apostasy (from Kayhan International, March 1986) includes the following:
An apostate - that is, one who abandons Islam and takes up atheism - may be of two types:
a. Voluntary apostate: a person whose parents, or either of them, were Muslim at the time of his or her development in the mother's womb and who takes up atheism after growing up.
b. Innate apostate: a person who is born of atheist parents and who accepts Islam after growing up, but returns to atheism later.
The penalty for voluntary apostasy for a man is to lose one's wife and possessions, and (if he does not repent) his life. Innate apostates do not lose their possessions but otherwise the penalty is the same. Female apostates are not executed but imprisoned. A Sunni Muslim pronouncement does not make these distinctions (either gender or voluntary/innate), but states that ‘Now, should the apostate (male or female) persist in his apostasy, he should be given the opportunity to repent, prior to his being put to death, out of respect for his Islam.’ (Mufti of Lebanon, Beirut, Fatwa issued 13 November 1989)
Apostasy and a Period for Repentance
In most schools (of Islam), the apostate is given the chance to return from error and follow the ordained path. If this is not done, he or (according to the Shi`a Imamiya) she will be executed. The period which is given to the apostate to return varies according to the schools but the Shi`a Imamiya are particularly harsh in that they say that whoever was born into Islam and turns away from it should be killed and no repentance accepted (Amnesty International, Law and Human Rights in the Islamic Republic of Iran, February 1980, MDE/13/03/80). Many Muslim countries do not impose the death penalty for apostasy, since there is debate among Islamic scholars about its propriety in the light of the Qu’ranic injunction against coercion in religion. In other Muslim countries, the death penalty is on the statute book but not implemented. There is also debate about what constitutes apostasy. As Susan Musarrat Akram points out in ‘Orientalism Revisited in Asylum and Refugee Claims’ (IJRL 12 (1):7 (2000)), persecution of ‘apostates’ tends to be a political rather than a religious matter, as with the Iranian regime’s persecution of Bahá’ís and Pakistan’s of Ahmadis.But where apostasy is severely penalised, the risk of punishment founds a claim of persecution for reason of religion under the 1951 Convention. Informal punishments by family and community members will also found a claim if state agents do not provide effective protection. Renunciation of Islam is not the only type of apostasy which may attract punishment (and therefore potential international protection). Goodwin-Gill (The Refugee in International Law, 2nd edition, 1996) refers to the serious discrimination faced by Jews in Israel converting to Christianity (p45, fn58). Many refugee claims based on apostasy are ‘sur place’ claims, i.e. the applicant was not a refugee on leaving his country of nationality or habitual residence, but since departure has converted or otherwise renounced his religion and claims to face a real risk of persecution on return.
International Human Rights Law: Freedom of Religion
The right to freedom of religion is in two parts: the right to belief (or unbelief) per se and the right to manifest the belief. International human rights law recognises the first as an absolute, non-derogable right, but the second may be subjected to proportionate limitations, to avoid, for example, improper proselytising in a society where different religions co-exist (see for e.g. Kokkinakis v Greece Application no. 14307/88, 25/05/1993)
On religious freedom, the US Supreme Court has said:
Human Rights Instruments and Religious Freedom
Universal Declaration on Human Rights 1948 (UDHR) Article 18:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
· International Covenant on Civil and Political Rights 1966 (ICCPR) Article 18:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
· General Comment No. 22: The right to freedom of thought, conscience and religion (Art. 18) 30/07/93 (CCPR/C/21/Rev.1/Add.4):
1. The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18.1 is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others ... The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4.2 of the Covenant...
5. The Committee observes that the freedom to "have or to adopt" a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief. Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant, are similarly inconsistent with article 18.2. The same protection is enjoyed by holders of all beliefs of a non-religious nature.
· Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Proclaimed by General Assembly resolution 36/55 of 25 November 1981, without a vote):
Article 1: 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.
3. Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
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 other belief.
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.
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 other beliefs in this matter.
Article 5: 1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.
2. Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle.
3. The child shall be protected from any form of discrimination on the ground of religion or belief. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for freedom of religion or belief of others, and in full consciousness that his energy and talents should be devoted to the service of his fellow men.
4. In the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle.
5. Practices of a religion or belief in which a child is brought up must not be injurious to his physical or mental health or to his full development, taking into account article 1, paragraph 3, of the present Declaration.
Article 6: In accordance with article 1 of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia , the following freedoms:
(a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;
(b) To establish and maintain appropriate charitable or humanitarian institutions;
(c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;
(d) To write, issue and disseminate relevant publications in these areas;
(e) To teach a religion or belief in places suitable for these purposes;
(f) To solicit and receive voluntary financial and other contributions from individuals and institutions;
(g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;
(h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief;
(i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.
Article 7: The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.
Article 8: Nothing in the present Declaration shall be construed as restricting or derogating from any right defined in the Universal Declaration of Human Rights and the International Covenants on Human Rights.
A Special Rapporteur on Freedom of Religion or Belief reports annually to the Human Rights Council, the Commission and the General Assembly on the state of religious tolerance and discrimination throughout the world. For the annual reports, see http://www2.ohchr.org/english/issues/religion/annual.htm. In addition, the Special Rapporteur regularly sends communications to governments on these issues, and the annual summaries of communications of the SR and governments’ responses are published on the same website. A recent report (A/HRC/7/10/Add.1) includes communications to the Indonesian and Iranian governments over their treatment of Baha’is.
· European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR), Article 9: Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
· American Convention on Human Rights, Article 12: Freedom of Conscience and Religion (adopted 22/11/1969, entry into force 18/7/1978)
1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.
2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.
3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.
4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions.
· 1981 African Charter on Human and Peoples’ Rights, Article 8
Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.
· Arab Charter on Human Rights (adopted by the League of Arab States on 15 September 1994) (in force March 2008)
Article 26: Everyone has a guaranteed right to freedom of belief, thought and opinion.
Article 27: Adherents of every religion have the right to practise their religious observances and to manifest their views through expression, practice or teaching, without prejudice to the rights of others. No restrictions shall be imposed on the exercise of freedom of belief, thought and opinion except as provided by law.
The Cairo Declaration on Human Rights in Islam, adopted at the 19th Islamic Conference of Foreign Ministers in Cairo on 5 August 1990
This places human rights within an Islamic context. As such, although it contains non-discrimination principles, no protection is afforded to those forsaking Islam, which is ‘the religion of unspoiled nature (Art 10, prohibiting forced or exploitative conversion from Islam to another religion or atheism). The Declaration expressly subjects all the rights and freedoms contained within it to the Islamic Shari’ah (Art 24).
Expresses its deep concern at serious human rights violations in the Islamic Republic of Iran relating to, inter alia:
(g) Severe limitations and restrictions on freedom of religion and belief, including the provision in the proposed draft penal code that sets out a mandatory death sentence for apostasy...
UNHCR Guidance on Religion-Based Claims
2. The right to freedom of thought, conscience and religion is one of the fundamental rights and freedoms in international human rights law. In determining religion-based claims, it is therefore useful, inter alia, to draw on Article 18 of the 1948 Universal Declaration of Human Rights (the “Universal Declaration”) and Articles 18 and 27 of the 1966 International Covenant on Civil and Political Rights (the “International Covenant”). Also relevant are the General Comments issued by the Human Rights Committee, the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief, the 1992 Declaration on the Rights of
Persons belonging to National or Ethnic, Religious and Linguistic Minorities and the body of reports of the Special Rapporteur on Religious Intolerance...
5. Claims based on “religion” may involve one or more of the following elements:
a) religion as belief (including non-belief);
b) religion as identity;
c) religion as a way of life...
12. Persecution for reasons of religion may ... 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. 8 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.
13. Applying the same standard as for other Convention grounds, religious belief, identity, or way of life can be seen as so fundamental to human identity that one should not be compelled to hide, change or renounce this in order to avoid persecution. Indeed, the Convention would give no protection from persecution for reasons of religion if it was a condition that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Bearing witness in words and deeds is often bound up with the existence of religious convictions.
14. Each claim requires examination on its merits on the basis of the individual’s situation. Relevant areas of enquiry include the individual profile and personal experiences of the claimant, his or her religious belief, identity and/or way of life, how important this is for the claimant, what effect the restrictions have on the individual, the nature of his or her role and activities within the religion, whether these activities have been or could be brought to the attention of the persecutor and whether they could result in treatment rising to the level of persecution. In this context, the well-founded fear “need not necessarily be based on the applicant’s own personal experience”. What, for example, happened to the claimant’s friends and relatives, other members of the same religious group, that is to say to other similarly situated individuals, “may well show that his [or her] fear that sooner or later he [or she] also will become a victim of persecution is well-founded”. Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. As the UNHCR Handbook notes, there may, however, be special circumstances where mere membership suffices, particularly when taking account of the overall political and religious situation in the country of origin, which may indicate a climate of genuine insecurity for the members of the religious community concerned...
17. … For the purposes of analysing an asylum claim, a distinction should be 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 …
18. The existence of discriminatory laws will not normally in itself constitute persecution, although they can be an important, even indicative, factor which therefore needs to be taken into account. An assessment of the implementation of such laws and their effect is in any case crucial to establishing persecution.…
19. Discrimination may ... take the form of restrictions or limitations on religious belief or practice. Restrictions have, for instance, included penalties for converting to a different faith (apostasy) or for proselytising...
21. Forced compliance with religious practices … could rise to the level of persecution if it becomes an intolerable interference with the individual’s own religious belief, identity or way of life and/or if non-compliance would result in disproportionate punishment...
22. … Where the law imposes disproportionate punishment for breaches of the law (for example, imprisonment for blasphemy or practising an alternative religion, or death for adultery), whether or not for adherents of the same religion, it would constitute persecution.
c) Conversion post departure
34. Where individuals convert after their departure from the country of origin, this may have the effect of creating a sur place claim. In such situations, particular credibility concerns tend to arise and a rigorous and in depth examination of the circumstances and genuineness of the conversion will be necessary. Issues which the decision-maker will need to assess include the nature of and connection between any religious convictions held in the country of origin and those now held, any disaffection with the religion held in the country of origin, for instance, because of its position on gender issues or sexual orientation, how the claimant came to know about the new religion in the country of asylum, his or her experience of this religion, his or her mental state and the existence of corroborating evidence regarding involvement in and membership of the new religion.
35. Both the specific circumstances in the country of asylum and the individual case may justify additional probing into particular claims. Where, for example, systematic and organised conversions are carried out by local religious groups in the country of asylum for the purposes of accessing resettlement options, and/or where “coaching” or “mentoring” of claimants is commonplace, testing of knowledge is of limited value. Rather, the interviewer needs to ask open questions and try to elicit the motivations for conversion and what effect the conversion has had on the claimant’s life. The test remains, however, whether he or she would have a well-founded fear of persecution on a Convention ground if returned. Regard should therefore be had as to whether the conversion may come to the notice of the authorities of the person’s country of origin and how this is likely to be viewed by those authorities. Detailed country of origin information is required to determine whether a fear of persecution is objectively well-founded.
36. So-called “self-serving” activities do not create a well-founded fear of persecution on a Convention ground in the claimant’s country of origin, if the opportunistic nature of such activities will be apparent to all, including the authorities there, and serious adverse consequences would not result if the person were returned. Under all circumstances, however, consideration must be given as to the consequences of return to the country of origin and any potential harm that might justify refugee status or a complementary form of protection. In the event that the claim is found to be self-serving but the claimant nonetheless has a well-founded fear of persecution on return, international protection is required. Where the opportunistic nature of the action is clearly apparent, however, this could weigh heavily in the balance when considering potential durable solutions that may be available in such cases, as well as, for example, the type of residency status.