Werner Nicolaas NEL

The systematic targeting of religious minorities in Iraq and Syria constitutes one of the most serious threats to international peace and security. The legal accountability of the Islamic jihadist militia responsible for such atrocities is an important means to protect international religious freedom, prevent future religious oppression and counteract impunity. The human rights violations and atrocities committed by the Islamic State have been classified as war crimes, terrorism, ethnic cleansing and crimes against humanity by the international community. However, the religious persecutory intent underlining the Islamic State's violent enforcement of extremist Islamic ideology merit the classification of such crimes as 'genocide by religious persecution' and 'crimes against humanity of religious persecution'.

The right to freedom of religion is an undeniable human right prescribed and protected by the rule of law, but persecution restricts the exercise of religious freedom. In countries where Christians are persecuted, the domestic legal system is usually prejudicial and incompetent, and victims are left unprotected. In counteracting the impunity for religious persecution in the domestic arena of countries of serious concern, international criminal law may be used to prosecute individuals responsible for severe acts of persecution of Christians by classifying these acts as either a "crime against humanity of religious perse-cution" or "genocide by religious persecution" in terms of the Rome Statute.

Particular forms of persecution are, based on their scale, severity, and discriminatory motivation, so heinous that such conduct may be justifiably categorised as enumerated inhumane acts of crimes against humanity in terms of the Rome Statute of the International Criminal Court. However, despite the persistent recognition of the crime of persecution, such an acceptance has lacked substantive and practical clarity. This ambiguity may thus be responsible, at least in part, for the international criminal justice systems’ perceived reluctance to enforce prosecution measures based on religious persecution. With this legal obstacle in mind, it is argued that greater legal certainty regarding persecution’s definitional elements would strengthen international judicial bodies’ resolve to pursue individual criminal accountability. Therefore, the primary aim of this study is to unveil the legal opacity surrounding crimes against humanity of religious persecution (‘grievious religious persecution’).

However, legal semantics can never reach the inner existential dimension of a person’s conscience. Consequently, this study takes a multidisciplinary approach to contextualising ‘grievious religious persecution’. Accordingly, the exact denotation and connotation of religion and religious identity, its role in characterising a situation as ‘religious’ persecution, and the influence of the right to freedom of religion or belief on such an assessment, is discussed. It is shown that religious persecution is based on the prevalence of religious identity as the prime discriminatory basis upon which the perpetrator targeted certain victims.

The overall thesis is therefore that it is possible to convincingly conceptualise ‘grievious religious persecution’ by denoting a definitively formulated and pragmatically verified taxonomy of the legal preconditions for establishing the ICC’s subject-matter jurisdiction. In this regard, a relevant taxonomy is proposed which differentiates between different forms of persecutory conduct, discusses the mens rea requirement, establishes the intensity threshold, recommends an effective definition, and is finally applied to a relevant case study in order to analyse its practical efficiency.

By proposing a justifiable and detailed taxonomy from the perspective of religious identity and religious freedom, the legal semantics and discourse regarding ‘grievious religious persecution’ is developed, which may positively influence its substantive understanding and may potentially lessen the political unease regarding its perceived scope and application. It is argued that the taxonomy may have various implications, including to strengthen the efforts of human rights defenders in re religious freedom, and advance criminal accountability and counteract impunity for severe human rights deprivations.