Rule 104.

The convictions and religious practices of civilians and

persons
hors de combat must be respected.
in Rule 127 on respect for the convictions and religious practices of persons
deprived of their liberty.
International and non-international armed conflicts
The obligation to respect the religious convictions and practices of persons in
occupied territory was already recognised in the Lieber Code, the Brussels
Declaration
and the Oxford Manual.504 It was codified in the Hague Regulations.505
This obligation is extended to all protected persons under the Fourth Geneva
Convention.506 The Geneva Conventions require respect for religion and
religious
practices in a series of detailed rules concerning burial rites and cremation
of the dead, religious activities of prisoners of war and interned persons, and
the education of orphaned children or children separated from their
parents.507
Respect for convictions and religious practices is recognised in Additional
Protocols
I and II as a fundamental guarantee for civilians and persons hors de
combat.508
The requirement to respect a persons convictions and religious practices is
set forth in numerous military manuals.509 Violation of the right to respect
for a persons convictions and religious practices, in particular forcible
conversion
to another faith, is a punishable offence under the legislation of several
States.510 This practice includes that of States not, or not at the time, party
to
the Additional Protocols.511 This rule was upheld in several war crimes trials
after the SecondWorldWar. In the Zu hlke case, the Special Court of
Cassation
of the Netherlands found that the refusal to admit a clergyman or priest to a
person
awaiting execution of the death sentence constituted a war crime.512 In the
Tanaka Chuichi case, the Australian Military Court at Rabaul found that
forcing
Sikh prisoners of war to cut their hair and beards and to smoke cigarettes,
acts forbidden by their religion, amounted to a war crime.513 It should also
be
noted that the Elements of Crimes for the International Criminal Court, in the
context of the war crime of outrages upon personal dignity, specifies that
this crime takes into account relevant aspects of the cultural background of
the victim.514 This was inserted in order to include, as a war crime, forcing
persons to act against their religious beliefs.515
The International Covenant on Civil and Political Rights, the Convention

on the Rights of the Child and the regional human rights treaties provide that
everyone has the right to freedom of thought, conscience and religion or,
alternatively, conscience and religion.516 These treaties also provide for
the
right to manifest ones religion and beliefs, subject only to limitations
prescribed
by law which are necessary to protect public safety, order, health,
morals or the rights and freedoms of others.517 The above-mentioned rights
are specifically listed as non-derogable in the International Covenant on Civil
and Political Rights and the American Convention on Human Rights,518 while
the Convention on the Rights of the Child and the African Charter on Human
and Peoples Rights do not allow for the possibility of derogations. The right
to freedom of thought, conscience and religion, to manifest ones religion or
beliefs and to change religion or belief is also set forth in other international
instruments.519
Interpretation
The right to respect for religious or other personal convictions of persons is
not
subject to limitations, unlike their manifestation as explained further below.
Humanitarian law treaties stress the requirement to respect the religion of
protected persons. The International Covenant on Civil and Political Rights
and the European and American Conventions on Human Rights specifically
provide that the right to freedom of thought, conscience and religion includes
the right of free choice of a religion or belief.520 Subjecting a person to
coercion
which would impair this right is explicitly prohibited under the International
Covenant on Civil and Political Rights and the American Convention on
Human Rights.521 In its General Comment on Article 18 of the International
Covenant on Civil and Political Rights, the UN Human Rights Committee
stated that the prohibition of coercion protects the right to change ones
belief,
to maintain the same belief or to adopt atheistic views. It added that policies
or practices having the same intention or effect, such as, for example, those
restricting access to medical care, education or employment, would violate
this
rule.522 The same point was made by the European Court of Human Rights
and
by the African Commission on Human and Peoples Rights, which also
stressed
the importance of respecting secular views.523
Any form of persecution, harassment or discrimination because of a persons
convictions, religious or non-religious, would violate this rule. The InterAmerican Commission on Human Rights, in its report on terrorism and
human
rights, stated that laws, methods of investigation and prosecution must not
be

purposefully designed or implemented in a way that distinguishes to their

detriment
members of a group based on, inter alia, their religion.524
The manifestation of personal convictions or the practice of ones religion
must also be respected. This includes, for example, access to places of
worship
and access to religious personnel.525 Limitations are only permitted if
needed for order, security or the rights and freedoms of others. As stated in
the commentary to Rule 127, the practice of detainees religion may be
subject
to military regulations. However, the limitations on such practice may
only be those that are reasonable and necessary in the specific context. In
its General Comment on Article 18 of the International Covenant on Civil
and Political Rights, the UN Human Rights Committee stated that limitations
must be directly related and proportionate to the specific need, and
that limitations applied for the protection of morals must not derive
exclusively
from a single tradition. It added that persons under legal constraints,
such as prisoners, continue to enjoy their right to manifest their religion
or belief to the fullest extent compatible with the specific nature of the
constraint.526