Before being a legal right by American and European national constitutions and later internationally, freedom of conscience was originally a philosophical notion that had developed in various ways by Enlightenment thinkers. It is a notion that had inspired the idea of separating religion from legal and state affairs, but much more than that: it is a notion which meant that, for the sake of preventing religious wars, individuals had to be free to choose the religion they wished to follow, all the while exercising it as a personal matter of ’conscience’ rather than a national political or legal matter.
The Enlightenment had not only advocated for freedom of conscience in the form of the right to choose one’s religious beliefs in order to prevent wars, but also, as Kant puts it, freedom of religion meant the freedom to question religious dogmas and to replace them with a universal moral and rational religion.
Yet, the example of the American State founding Constitution understood freedom of conscience as the freedom to choose and practice any religion, thereby, allowing plurality of religions in the American society; a plurality that was meant to be protected by secular, political and legal systems. This meant the end of institutionalised religion and the birth of the free individual practice of religion with very minimal state restriction in the ’pluralist-liberal’ model as defined by Maclure and Taylor, in contrast to the ’republican’ model where the state could interfere to limit certain aspects of religious exercise on the basis of protecting state neutrality.
Today, freedom of conscience is not only enshrined in secular American and European legal systems, whether in republican or pluralist-liberal states, but is also embraced by international law, at least theoretically. Freedom of conscience under international law is more than the freedom to choose one’s religious beliefs, as it also encompasses the more general right to think either religiously or irreligiously according to Article 18 of the Universal Declaration of Human Rights 1948 (UDHR). Yet, it is not enough for this freedom to exist in international law without the sufficient tackling of violence against those who belong to minority religious groups, or another conscience minority.
In many parts of the non-secular world, where religion is still a strong national identity expression, it is religious minorities that are often the target of majority religious groups or other actors. Women have been the forefront victims of religious persecution and constitute the most vulnerable population in religious minorities. In this article the question raised is whether international law provides a thorough protection of freedom of conscience, and especially for the gender-specific persecution of women in religious minorities.
Freedom of conscience: the paradox between international legal theory and practice
The establishment of the right to freedom of conscience was initially of a non-binding nature, as set out in Article 18 of the Universal Declaration on Human Rights, which meant that there was no guarantee that state parties to the Declaration would implement the right. However, with the International Covenant on Civil and Political Rights 1996 that followed, State parties to the UDHR became bound to uphold not only freedom of religion as a fundamental right (Article 18), but also the particular protection of religious minorities and their right to free practice of their religion (Article 27).
Those rights have not manifested in a practical form, as religious minorities in various non-secular states are facing persecution of different kinds, whether from state actors (governments) or non-state destabilizing actors (such as terrorist groups), and little if not almost no international legal sanctions or legal enforcement and prosecution has been implemented in order to uphold the right of freedom of religion because the law on freedom of conscience is yet to become of a binding nature in customary international law.
In this article, emphasis is placed on the excessive amount of abuse that religious minorities’ women suffer from whenever there is an ongoing religious persecution. Not all cases of religious persecution will be covered, but gender-based violence will be highlighted, especially as that appears systematic in any religious persecution during times of war. No doubt, women are the most vulnerable group during any type of aggression, and their very existence seems to be exploited for the purpose of imposition of power from the persecutors or the spreading of their ideology.
When war crimes are committed against women, it is usually within the context of a fight between two groups. However, in the case of religious persecution, there is no fight. There is a minority group that endures the abuse inflicted by a powerful party that often seeks nothing but to impose a certain ideology, be it religious or other, and to simply become the predominant themselves such as in the case of terrorist groups that were born out of marginalised youth, coming from poor and violence-afflicted areas of their country which are today known for a violent landscape of religious persecution. In the case of Iraq, the concern is for the extinction of very old civilisations and religious communities, ranging from the Mandaeans to the Yazidis, to the Christians and more.
The case of a Mandaean woman getting raped in front of her husband after she refused to wear the ideological imposition of the hijab by jihadists is but one example out of the countless cases of abduction, systematic rape and sexual slavery that have been endured by women in Iraq belonging to religious minorities. According to a report, in Iraq, since 2003, starting from the Islamic law’s hijab imposition on Christian women to their murder, if they refused to wear the hijab; as a result, such policies have led to thousands of Christian women to quit their education. Christian women not wearing the Islamic hijab had been kidnapped and raped. Some had committed suicide after being set free from abduction due to the violence they had suffered.
Other means of persecution used by Islamic jihadists, in Iraq, were the forced conversions and forced marriages of Mandaean women. This is only to depict the general picture of the crimes that women from religious minorities suffer from around the world and it is not only Iraq that is concerned by such cases, but a number of Sub-Saharan African countries that struggle themselves to control terrorist groups. It must also be noted that according to a recent UN report, it is women and girls from religious minorities in South and South-East Asia that are particularly prone to violence through forced marriages, forced conversions, even discrimination for having a different background of origin. It was, for instance, shown in an All-Party Parliamentary Groups report that up to one thousand women and girls in Pakistan are yearly forced to convert to Islam and to marry Muslim men.
It is worth noting that such gender-based religious violence is akin to the cleansing of the concerned ethnic or religious community since such religious minorities are losing the very source of their survival and growth that is their women. Women’s bodies of the Chinese Muslim minority, the Uyghurs, have also been abused through forced sterilisation by the Chinese government. One must, therefore, be wondering what international legal action has been taken, if any, to end the systematic abuse of religious minorities women worldwide and to protect freedom of religion.
Legal action to protect freedom of conscience
The international legal institution that was created for the prosecution of serious crimes, such as the crime of genocide, crimes against humanity and the crime of persecution, is the International Criminal Court (ICC). The Jurisdiction of the ICC is only related to individuals and not to groups; that means only certain individuals can be prosecuted and not an entire terrorist group for example. For any prosecution to happen at the ICC, the ICC’s founding instrument, the Rome Statute 1998, requires states to acknowledge the Court’s jurisdiction against individual perpetrators who committed crimes within the relevant state‘s territory, as it is the state party itself that is referring the criminal conduct to the ICC. It is the signatory State that must decide to relinquish the relevant perpetrator to the ICC. The UN Security Council can also refer a situation in a certain state to the ICC; however, everything depends on the political will of certain powerful states, as the veto power has often been used to prevent perpetrators of serious crimes, under the Rome Statute, from being brought before the ICC.
The first case of an Islamist terrorist that was brought before the ICC is The Prosecutor v Ahmad Al Faqi Al Mahdi and involved a Sub-Saharan jihadist who had destroyed a global UNESCO religious cultural heritage site. It seems, in the author’s view, that the first kind of international attention given to the endless of heinous crimes committed by Islamist jihadists was towards the destruction of a monument of global importance, that the lives of raped, enslaved and murdered women somehow came of secondary importance to the international community, if not of a shadowed, non-existing, importance.
It is not denied that religious monuments of historic heritage should not be protected and given importance, but how is it that they preceded human lives, children’s and women’s suffering from extremist religious persecution? This shows that the right to freedom of religion is yet to be considered as important; at least there is not sufficient action demonstrating the words written on paper for such a right, let alone to speak of the systematic targeting of women from religious minorities. Nevertheless, the Al Mahdi case has set a precedent for the prosecution of terrorist individuals before the ICC, and has brought Jihadism into the arena of international legal attention.
The prosecution of a second Sub-Saharan jihadist individual, this time for crimes against humanity, was initiated in 2018 with the case The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoudand crimes committed against women such as rape, sexual slavery and forced marriage were included in the list of crimes against humanity, carried in the spreading of extremist religious ideology. It, nevertheless, remains that the ICC Rome Statute does not list terrorism as a crime, but terrorism results in a number of crimes listed in the Rome Statute.
It is to be observed, as a conclusion, that international law enshrines freedom of religion as a binding legal right, as well as the protection of religious minorities from persecution. Yet, not only does international law provide no effective mechanisms of enforcement and sanctions on the states that fail to protect such a right, but it also seems that with the systematic abuse of women during every persecution of a religious minority, freedom of religion has not benefitted enough attention, and has instead suffered from quasi-absent attention in non-secular states.
To defend freedom of religion, it is not a matter of defending any political system of liberalism and secularism; it is a matter of saving the lives of religious minority groups and alleviating the excessive suffering of women. Therefore, due to how seriously destabilising and threatening to women’s existence the lack of religious freedom can result in, the international community should pay particular focus in addressing the violations of the right and why not officially and clearly criminalise its violation.
 Hunter Ian, 'Kant's Religion and Prussian Religious Policy' (2005) 2 Modern Intellectual History 1.  Immanuel Kant, Wood AW and Giovanni DG, Religion and Rational Theology (Cambridge University Press 2006).  John Witte Jr, 'Historical Foundations and Enduring Fundamentals of American Religious Freedom', The Blessings of Liberty: Human Rights and Religious Freedom in the Western Legal Tradition (Cambridge University Press 2021).  Jocelyn Maclure and Charles Taylor, Secularism and Freedom of Conscience (Harvard University Press 2011).  UNGA Res 217 A (III) 'Universal Declaration of Human Rights' (10 December 1948) (adopted by a vote of 48-0-8).  Ibid.  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).  Ibid.  Makau Wa Mutua, 'The ideology of Human Rights' (1966) 36 Virginia Journal of International Law 589.  Shak Hanish, 'Christians, Yazidis, and Mandaeans in Iraq: A Survival Issue' (2009) 18 Digest of Middle East Studies 1.  Ibid.  Ibid.  Ibid 8.  Ibid.  Ibid 13.  Antonio Quirós-Fons, 'Religious Persecution in Sub-Saharn Africa: Jihadism and ICC Prosecution' (2022)13 Religions 784.  UNHRC, 'Report on Freedom of Religion or Belief and Gender Equality' (27 February 2020) UN Doc HRC/43/48.  Andy Bailey, 'APPG for the Pakistani Minorities: Abductions, Forced Conversions, and Forced Marriages of Religious Minority Women and Girls in Pakistan' (2021) The APPG for International Freedom of Religion or Belief.  James Waller and Mariana Salazar Albornoz, 'Crime and No Punishment? China’s Abuses against the Uyghurs'  22 Georgetown Journal of International Affairs 100.  ICC, 'About the Court'.  Art 25, Rome Statute of the International Criminal Court (17 July 1998) 2187 UNTS 38544.  Art 4, Rome Statute of the International Criminal Court (17 July 1998) 2187 UNTS 38544.  UNSC, 'Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resoution' (Meetings Coverage and Press Releases, 22 May 2014) accessed 24 December 2022.  The Prosecutor v. Ahmad Al Faqi Al Mahdi  ICC 01/12-01/15.  The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud  ICC-01/12-01/18.