The Nordic Journal of Human Rights has published the special issue “Disentangling the Relationship between Religion and Law”, as part of Volume 39. The following articles can be found in the new special issue:

Editorial

Special Issue on ‘Disentangling the Relationship between Religion and Law’ – Carola Lingaas and Gentian Zyberi

Foreword

Providing an Open Space for Diversity: The Human Rights Approach to Dealing with Religion(s) – Heiner Bielefeldt

The disentanglement of state and religion can serve different purposes. On the one hand, it can lead to privatization of religion or its relegation to politically predefined spheres in society. On the other hand, disentanglement can also be in the service of providing an open space for the unfolding of religious diversity without fear and without discrimination. The article pleas for a human rights-based understanding of secularism as a necessary implication of freedom of religion or belief.

Articles

When Religion Speaks: Denmark’s Face Covering Ban and European Human Rights Law – Kerstin Bree Carlson and Jacob Livingston Slosser

This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR’s Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR’s jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims.

Religious Group Identities in Genocide: Social Identity Theory as a Tool for Disentangling Law and Religion – Carola Lingaas

This paper discusses Social Identity Theory, intergroup conflict, religion, and the case law on genocide. In exploring the relevance of social identity theory for the law of genocide, it argues that the current jurisprudential approach of blending group membership criteria, based on the ‘four corners’ approach, is flawed. The cases of Rwanda, the Former Yugoslavia, Cambodia, India, and Myanmar exemplify the relevance of the theory.

Disentangling Law and Religion in the Rohingya Case at the International Criminal Court – Juan-Pablo Pérez-León-Acevedo and Thiago Alves Pinto

The Rohingya are one of the most persecuted minorities in the world. Military campaigns conducted by Myanmar against the Rohingya have led to numerous deaths, widespread cases of sexual violence, the destruction of hundreds of villages, and the deportation of more than 700,000 people to Bangladesh. These events have triggered proceedings at the International Criminal Court (ICC). The ICC has arguably failed to address the religious dimensions of crimes and facts in some of its previous jurisprudence appropriately. This article argues that, by disentangling law and religion in the proceedings related to the Rohingya, the ICC may be able to enhance the consideration of both elements.

Killing in the Name of Islam? Assessing the Tunisian Approach to Criminalising Takfir and Incitement to Religious Hatred against International and Regional Human Rights Instruments – Mohamed Elewa Badar and Polona Florijančič

The rise of political Islam since the 1970s and the lack of a robust political alternative during the Arab Spring have paved the way for the widespread issuance of accusations of unbelief or takfir against individuals, groups of people, or institutions. These pronouncements fit into the broader context of radical Islamist ideologies spread by systematic hate propaganda, and when the two converge they constitute instigation to murder. Tunisia has chosen a head-on approach by criminalising accusations of unbelief and incitement to religious hatred and loathing as terrorist offences. Drawing on the jurisprudence of the Human Rights Committee and the African Commission, as well as literature in the field of human rights, this paper demonstrates the interrelation between the right to life, freedom from fear, security of the person, and the right to dignity, as well as their violations through unfettered takfirism.

Communities’ Sacred Mountains vs. State-owned Natural Resources – Towards a Rights-based Governance of Cultural and Biological Diversity in China​​​​​​​ – Yong Zhou

In the multi-nation society of China, disputes related to the beliefs and customs of indigenous communities in the process of the state’s natural resources management have been increasing because of sports activities, tourism, extractive industries, hydropower and other infrastructure constructions. From a legal pluralism perspective, with a focus on the Tibetan mountain cult in the Kawagebo (Mt. Meili) mountain area, this research argues the existence of two types of governances based on different worldview, beliefs, normative frameworks and management practices: the community spiritual governance (CSG) and the state resources governance (SRG). By analysing the institutional constraints to, and the potentials of recognising the spiritual significance of, sacred mountains and rights of indigenous communities, this research justifies a pathway of turning SRG towards a ‘rights-based governance’ for coordinating these conflicts.