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Claims for Protection Based on Religion Or Belief: Analysis and Proposed Conclusions

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Claims for Protection Based on Religion Or Belief: Analysis and Proposed Conclusions LEGAL AND PROTECTION POLICY RESEARCH SERIES Claims for Protection Based on Religion or Belief: Analysis and Proposed Conclusions Karen Musalo Resident Scholar and Director, Center for Gender Refugee Studies University of California, Hastings College of the Law DEPARTMENT OF INTERNATIONAL PROTECTION PPLA/2002/01 December 2002 PROTECTION POLICY AND LEGAL ADVICE SECTION (PPLA) DEPARTMENT OF INTERNATIONAL PROTECTION UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES CP 2500, 1211 Geneva 2 Switzerland E-mail: [email protected] Website: http://www.unhcr.org This paper was commissioned by UNHCR (Department of International Protection) as a background paper for an expert discussion on religion organized as part of the follow-up to the Agenda for Protection. The views expressed in this paper are not necessarily those of UNHCR. The paper is available online at http://www.unhcr.org/protect. © United Nations High Commissioner for Refugees 2002 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of UNHCR. LEGAL AND PROTECTION POLICY RESEARCH SERIES Claims for Protection Based on Religion or Belief: Analysis and Proposed Conclusions Karen Musalo Resident Scholar and Director, Center for Gender Refugee Studies University of California, Hastings College of the Law DEPARTMENT OF INTERNATIONAL PROTECTION PPLA/2002/01 December 2002 Table of Contents EXECUTIVE SUMMARY I. INTRODUCTION .....................................................................................................................iii II. INTERNATIONAL STANDARDS ..............................................................................................iv A. The Convention, the Travaux Preparatoires, and the United Nations Handbook.......................................................................................................................iv B. The International Norm on Freedom of Religion or Belief ..........................................iv 1. The Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights and other relevant international guidance .........................................................................................iv 2. The scope of the right to freedom of religion or belief .......................................iv III. INTERPRETIVE ISSUES RELATED TO RELIGION-BASED CLAIMS UNDER THE REFUGEE CONVENTION AND STATE JURISPRUDENCE .........................................................v A. Persecution .....................................................................................................................v 1. The definition of persecution in refugee jurisprudence ........................................v 2. State jurisprudence regarding persecution ...........................................................v B. Well-Founded ...............................................................................................................vi 1. The definition of “well-founded” fear in refugee jurisprudence .........................vi C. The Convention Ground of Religion ............................................................................vi D. For reasons of / Nexus .................................................................................................vii 1. The nature of the required causal link ................................................................vii E. Credibility ...................................................................................................................viii CLAIMS FOR PROTECTION BASED ON RELIGION OR BELIEF: ANALYSIS AND PROPOSED CONCLUSIONS I. INTRODUCTION .....................................................................................................................1 II. INTERNATIONAL STANDARDS ...............................................................................................5 A. The Convention, the Travaux Preparatoires, and the United Nations Handbook........................................................................................................................5 B. The International Norm on Freedom of Religion or Belief ...........................................6 1. The Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights and other relevant international guidance ..........................................................................................6 2. The scope of the right to freedom of religion or belief ........................................7 III. INTERPRETIVE ISSUES RELATED TO RELIGION-BASED CLAIMS UNDER THE REFUGEE CONVENTION AND STATE JURISPRUDENCE .........................................................................9 A. Persecution .....................................................................................................................9 1. The definition of persecution in refugee jurisprudence ........................................9 2. State jurisprudence regarding persecution .........................................................10 a. The nature and gravity of the harm required to constitute persecution ...................................................................................................11 i. Discrimination imposed because of religion; when does i discrimination rise to the level of persecution? ....................................11 Proposed Conclusion 1 ............................................................................................17 ii. Serious physical harm; persecution distinguished from discrimination .......................................................................................18 Proposed Conclusion 2 ............................................................................................20 iii. Limitations or restrictions on religion; when do such limitations or restrictions constitute persecution? ................................20 Proposed Conclusion 3 ............................................................................................26 iv. Forced compliance with religious norms; when does it constitute persecution? .........................................................................26 b. Non-state agents / failure of State protection .............................................27 Proposed Conclusion 4 ............................................................................................28 B. Well-Founded ...............................................................................................................28 1. The definition of “well-founded” fear in refugee jurisprudence .........................28 2. State jurisprudence regarding a well-founded fear .............................................29 a. The relevance of past persecution to establishing a well- founded fear of persecution .........................................................................29 b. Internal flight alternative .............................................................................30 c. Mere membership ........................................................................................32 d. Safe country of origin ..................................................................................32 Proposed Conclusion 5 ............................................................................................33 Proposed Conclusion 6 ............................................................................................33 C. The Convention Ground of Religion ............................................................................33 Proposed Conclusion 7 ............................................................................................36 D. For Reasons of / Nexus ................................................................................................36 1. The nature of the required causal link ................................................................36 2. Divergent approaches to interpreting “for reasons of” .......................................37 3. State jurisprudence on causation in religion-based claims .................................38 a. Conscientious objection to military service .................................................39 b. Claims precluded by an intents-based analysis ...........................................43 c. Gender cases involving repressive social norms ..........................................44 d. Claims related to inter-religious relationships..............................................46 e. Claims arising during civil war and unrest ..................................................47 f. Overlapping Convention reason/Non-Convention reasons ..........................47 Proposed Conclusions 8 & 9 ...................................................................................48 E. Credibility......................................................................................................................49 1. Depth of the applicant’s convictions/ imputed religious belief ..........................49 2. Knowledge of religion and acts consistent with religion ....................................50 3. Sur place claims ..................................................................................................53 4. Other credibility issues in religion cases .............................................................54 Proposed Conclusions 10-13 ...................................................................................55
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