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Persecution

PERSECUTION

PERSECUTION. Life was difficult for almost everyone in early modern Europe. Malnutrition, grinding poverty, pervasive disease, and frequent warfare over much of the continent were commonplace challenges for early modern Europeans. Furthermore, most political systems oppressed at least some people to some degree, though the nature of that oppression changed over time and from place to place. In the context of such challenges, then, it is important to understand what persecution meant to early moderns themselves. Until recently, persecution was generally understood to apply to attacks made for reasons of religion. Individuals or groups persecuted those who, in the opinion of the persecutors, provided a particular challenge or threat to society and its underlying religious values. Thus, while in the twenty-first century people think of persecution as encompassing race, ethnicity, gender, and sexual orientation as well as religion, to early moderns persecution explicitly referred to oppression due to one's religious practices and faith.

CONFESSIONAL VIOLENCE

Confessional violencethat is, violence perpetrated by one religious group (adhering to one "confession" or denominational statement) against anotherwas the prototypical religious persecution of the early modern period. In the wake of the upheavals caused by Martin Luther (14831546), Huldrych Zwingli (14841581), John Calvin (15091564), and the radical reformers, debate over religious matters grew increasingly heated and violent. Political leaders in the Holy Roman Empire attempted to resolve the threat of religious violence by mandating that each leader could choose one faith for his territoryeither Catholicism or Lutheranismand that all citizens would have to comply with that decision. This was at best a temporary and partial solution, however, since it took into account neither the newly emerging Calvinists nor the theologically diverse range of reform ideas brought together by the term Anabaptists, or radical reformers. Anabaptists suffered particularly in the sixteenth and seventeenth centuries, as would Quakers at a slightly later date, for their stark rejection of conventional religious practices, social customs, and markers of political authority.

Confessional violence often was not instigated by elites, but rather was perpetrated by peasants and artisans against other peasants and artisans. Catholics and Protestants engaged in religious persecution through most of Europe. Some places, like the Dutch Republic, witnessed a relative paucity of confessional violence. Despite some outbreaks of iconoclasm (forcibly removing images from churches) the Low Countries won an early reputation as a haven for a number of religious adherents, both Christian and Jewish. Likewise, those countries with a largely homogenous religious populationCatholic Spain and Calvinist Geneva, for exampledid not experience widespread mass confessional violence per se. Other countries were not so peaceful. Particularly infamous was France, where sporadic outbreaks of widespread violence marked the French Wars of Religion (15621598). The nadir of this violence came on St. Bartholomew's Day, 24 August 1572, when fears of a Huguenot (French Calvinist) plot against the Catholic crown led the king to order troops into Paris. A Calvinist noble and Huguenot leader was executed, and mass violence broke out, leading to the deaths of perhaps three thousand Huguenots in Paris. Over the next few days the violence spread to other French cities, and around twenty thousand more Huguenots were killed.

INQUISITIONS AND OTHER JURIDICAL ACTIVITY

The involvement of the French crown and Catholic nobility in the St. Bartholomew's Day massacre suggests that not all persecution took the form of popular mass violence, and indeed state, local, and religious officials also persecuted dissenters within their dominions. Adherents of minority Christian faiths, heretics, and those accused of witchcraft were subject to a variety of legal proceedings designed to limit their influence or eliminate them entirely.

The early modern Inquisitions of Spain and Italy provided religious leaders with a means of discouraging popular practices, like bigamy, that went against church doctrine. It could also become a means through which people could accuse and harass their political rivals. In Spain, the Inquisition was established as an arm of the state by Ferdinand and Isabella with the approval of the pope. The first target of the inquisitors were Jewish converts to Christianity and their descendents, known as conversos. These conversos may or may not have been practicing Christians, but accused of "false and simulated conversions," they were subject to whippings, exile, imprisonment, or execution. Later, the inquisitors turned their attention to "Lutherans" (Protestants), converts from Islam (known as Moriscos), and other heretics.

Protestant countries had their own legal methods of countering forbidden beliefs. Like the Inquisition, the Star Chamber in England and the Consistory in Geneva were concerned with determining the intentions of those accused, and then punishing them for wrong beliefs and intentions. But it was the Consistory that exemplified Protestant juridical attacks on heresy and other unapproved acts. The Consistory was a part of the ecclesiastic-political rule of Calvinist Geneva, designed by Calvin himself to help create a New Jerusalem. The Consistory was the organization concerned with oversight of behavior, and as such it monitored everything from gambling to heresy. Calvin was also responsible for the first execution of a heretic by a reformed churchMichael Servetus (Miguel Serveto, 15111553), who challenged the doctrine of the Trinity.

Witchcraft was also considered a dangerous challenge to religious orthodoxy and to the salvation of those involved, and so also faced considerable legal persecution. Although the precise genesis of witch-hunting is unclear, at the end of the Middle Ages thinkers began to associate certain folk practices with maleficium (evildoing) and with devilworship. Like the Inquisition, witch trials could serve as a means of exerting control over the populace, particularly for local authorities attempting to retain their power in the face of increasingly powerful royal authorities. Religious leaders, both Catholic and Protestant, could also use witch trials to attack folk practices that challenged their authority as much as did other denominations. It also seems clear that women were a particular target of witch hunts. Women involved with issues of life and death, like midwives and healers, and women on the margins of society could potentially be brought back under control by an accusation of witchcraft. Whatever the reason, and whatever those accused thought they were doing, witchcraft accusations rose dramatically in the sixteenth and seventeenth centuries.

PERSECUTION AGAINST JEWS AND MUSLIMS

Non-Christians were at times considered dangerous to political authorities, and were subject to frequent restrictions and persecutions. Jews had been expelled from most of northwestern Europe in the Middle Ages; in the late fifteenth century and early sixteenth century they were expelled from the Iberian Peninsula and parts of Italy and the Holy Roman Empire. However, Jews continued to live in other parts of Italy and the empire, and in eastern Europe. Jews were not citizens of the towns they inhabited and existed at the mercy of the authorities. Sometimes, as Gluckel of Hameln (16461724) writes in her autobiography, Jews were expelled from individual towns, only to be permitted to return at a later date during daylight hours to conduct business. In other places, most notably Venice, Jews were forced into walled communities or ghettos, in part to control their movements and in part to protect them from occasional mob violence. There were some exceptions to this grim picture; the Netherlands in the west and Poland-Lithuania in the east offered generally safe havens for Jews, and England readmitted Jews in the 1660s. Furthermore, conditions for Jews were much better in southeastern Europe under the rule of the Ottomans. Compared to Jews, there were few Muslims in Europe. The relatively large Muslim population of Spain was forced to convert in 1500, and their descendents faced occasional charges of heresy until they were expelled en masse in 16091613. Muslims in the east increasingly came under the protection of the expanding Ottoman Empire.

PERSECUTION AND TOLERATION

By the end of the seventeenth century, persecution was on the wane in Europe. There are several explanations for this. If persecution was a means for states to exert their authority, then the decline in persecution would suggest that states had found other means of keeping their subjects in line. Independent prosecutions by local authorities were increasingly constrained by growing state authority. Religious leaders also found new means of ensuring conformity, or in some cases stopped challenging rival beliefs and practices. In addition, there was decreased interest in pursuing religious minorities and witchcraft accusations, almost an exhaustion of zeal that some have attributed to a rejection of intense interest in religious matters after the violence of religiously motivated conflicts like the Thirty Years' War (16181648) and the English Civil Wars (16421649).

Moreover, the Enlightenment of the eighteenth century generated a new "toleration debate" among the educated, in which earlier ideas about the individual nature of religious belief reemerged, this time reasoned to the conclusion that religious belief could not be coerced. John Locke (16321704), for example, argued that religious belief was voluntary, and outside the control of civil authorities, with the exception of Catholics and atheists. Skepticismabout the efficacy of witchcraft and about the nature of religious belief itselfgrew, as thinkers like Baruch Spinoza (16321677) published their ideas from the relative safety of Amsterdam. Finally, thinkers argued that political states could no longer afford to wage war over religion. Suppression of religious populations within a state, and religiously motivated wars with other states, had become so destructive that it was politically and economically unfeasible. Charles-Louis de Secondat, marquis de Montesquieu (16891755), and Voltaire (16941778) argued against the Inquisition as the epitome of an irrational, and economically counterproductive, denial of political liberty. Others pointed out that, by other names, Lutherans and Calvinists had instituted their own inquisitions that were equally dangerous. By the end of the eighteenth century, Europe had moved away from the religious persecution that had marked the beginning of the early modern period.

See also Anabaptism ; Calvinism ; Conversos ; Ghetto ; Huguenots ; Inquisition ; Jews, Attitudes toward ; Jews, Expulsion of (Spain ; Portugal) ; Law ; Lutheranism ; Moriscos, Expulsion of (Spain) ; Reformation, Protestant ; St. Bartholomew's Day Massacre ; Toleration ; Violence ; Wars of Religion, French ; Witchcraft .

BIBLIOGRAPHY

Barry, Jonathan, Marianne Hester, and Gareth Roberts, eds. Witchcraft in Early Modern Europe: Studies in Culture and Belief. Cambridge, U.K., 1996.

Burke, Peter. Popular Culture in Early Modern Europe. Rev. reprint. Aldershot, U.K., and Brookfield, Vt., 1994.

Gregory, Brad S. Salvation at Stake: Christian Martyrdom in Early Modern Europe. Cambridge, Mass., 1999.

Henningsen, Gustav. The Witches' Advocate: Basque Witchcraft and the Spanish Inquisition, 16091614. Reno, Nev., 1980.

Holt, Mack P. The French Wars of Religion, 15621629. Cambridge, U.K., 1995.

Katz, Jacob. Tradition and Crisis: Jewish Society at the End of the Middle Ages. Translated and with an introduction by Bernard Dov Cooperman. New York, 1993.

Peters, Edward. Inquisition. New York, 1988.

Shiels, W. J., ed. Persecution and Toleration. Studies in Church History, no. 21. Oxford, 1984.

Gretchen D. Starr-LeBeau

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Persecution

PERSECUTION

The term "persecution" derives from the vocabulary of religion and was used to describe the torture and torments inflicted on the early Christians martyrs. In everyday usage, it characterizes all relationships in which one party, the persecutor, pursues the other, the persecuted, with malevolent intentions, cruelty, and hatefulness.

In the language of psychopathology, the term "delusions of persecution" has been used to refer to the ideas and feelings described in patients with various diagnoses, including paranoia, schizophrenia, melancholia, and hypochondria. Freud's hypothesis is that a delusion of persecution is the result of a defense against unconscious homosexual impulses.

Described since antiquity, feelings and ideas of persecution were noted in connection with various clinical entities until the second half of the nineteenth century, when new systems of psychiatric classification isolated them into a separate and independent category (Legrand du Saule, 1871). In the early twentieth century, German psychiatry characterized persecution in relation to "paranoia" while French authors dismissed what they called folie raisonnante ; even though it was clear that other pathologies (for example, the paranoid form of dementia praecox) could include this type of delusional thinking.

Today, clinicians tend to recognize the persecution dimension in a number of conditions, including erotomania, delirious hypochondria, or delirious jealousy; these conditions do not actually reach the level of "delusions of persecution" in the strict sense of the term, but all involve essential aspects of the persecutory relationshipprojection, passionate and one-sided attachment, and acting out.

In his commentary on Daniel Paul Schreber's autobiography (1911c), Freud described the mechanism of symptom formation, the underlying unconscious fantasy, and the level of fixation of a persecutory relationship. He saw the onset of the disorder in "sexualization of their social instinctual cathexes" (p. 62) and suggested that these cathexes are the result of inhibition of homosexual tendencies (the erotic component of friendship) arising from the stage when object choice is narcissistic. The unconscious fantasy of the persecutory relationship thus represents the fixation to this homosexual stage of the libido.

Finally, to explain the way that symptoms of persecution develop, Freud suggested the specific mechanism of "projection." The impossibility of accepting "I (a man) love him (a man)" is unconsciously transformed into "I hate him." But this formulation, representing the return of the repressed, cannot become conscious in such form and Freud writes that, "thus the impelling unconscious feeling makes its appearance as though it were the consequence of an external perception. 'I do not love himI hate him, because he persecutes me"' (p. 63).

Delusions of persecution represented Freud's first attempt to identify certain mental pathologies with reference to psychic mechanisms other than repression and the "return of the repressed."

Vassilis Kapsambelis

See also: Act, passage to the; Anxiety; Delusion; Double, the; Helplessness; Internal object; Megalomania; "On the Origin of the 'Influencing Machine' in Schizophrenia"; Paranoia; Paranoid-schizoid position; Privation; "Psycho-Analytic Notes on an Autobiographical Account of a Case of Paranoia (Dementia Paraniodes)"; Psychoses, chronic and delusional.

Bibliography

Freud, Sigmund. (1911c). Psycho-analytic notes on an autobiographical account of a case of paranoia (dementia paranoides). SE, 7: 1-82.

Legrand du Saule, Henri. (1989). Le delire des persecutions. Paris: G. R. E. C.

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Persecution

Persecution. Adherents of virtually all religions have suffered persecution for their faith at some point in their history, and such persecution has generally been held to forge a more resilient faith. Thus the pressure on Muḥammad during the Meccan period made him more determined, so that martyrs (shahīd) became highly favoured and revered in Islam. That ‘the blood of the martyrs is the seed of the church’ (see TERTULLIAN) arose as a belief from the early cents. of Christianity, when Christians were sporadically persecuted as a non-conformist minority: there was only formal imperial persecution under the Emperors Decius (250), Valerian (257–8), and Diocletian (304–11). The 20th cent. has seen persecution of Christians on an unprecedented scale—by atheistic communism, by fascism, and by militant Islam in certain countries. See also ANTI-SEMITISM; HOLOCAUST.

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Persecution

501. Persecution

  1. Albigenses medieval sect suppressed by a crusade, wars, and the Inquisition. [Fr. Hist.: NCE, 53]
  2. Camisards uprising of Protestant peasantry after the revocation of Edict of Nantes in 1685 was brutally suppressed by the royal army. [Fr. Hist.: NCE, 434]
  3. Huguenots Protestants of France, much persecuted from the 16th century onward. [Fr. Hist.: NCE, 1285]
  4. Quo Vadis novel of Rome under Nero, describing the imprisonment, crucifixion, and burning of Christians. [Pol. Lit.: Magill I, 797]
  5. Spanish Inquisition harsh tribunal established in 1478 to dispose of heretics, Protestants, and Jews. [Eur. Hist.: Colliers, X, 259]

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persecution

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electrocution, elocution, evolution, execution, institution, interlocution, irresolution, Lilliputian, locution, perlocution, persecution, pollution, prosecution, prostitution, restitution, retribution, Rosicrucian, solution, substitution, volution •cushion • resumption • München •pincushion •Belorussian, Prussian, Russian •abduction, conduction, construction, deduction, destruction, eduction, effluxion, induction, instruction, introduction, misconstruction, obstruction, production, reduction, ruction, seduction, suction, underproduction •avulsion, compulsion, convulsion, emulsion, expulsion, impulsion, propulsion, repulsion, revulsion •assumption, consumption, gumption, presumption •luncheon, scuncheon, truncheon •compunction, conjunction, dysfunction, expunction, function, junction, malfunction, multifunction, unction •abruption, corruption, disruption, eruption, interruption •T-junction • liposuction •animadversion, aspersion, assertion, aversion, Cistercian, coercion, conversion, desertion, disconcertion, dispersion, diversion, emersion, excursion, exertion, extroversion, immersion, incursion, insertion, interspersion, introversion, Persian, perversion, submersion, subversion, tertian, version •excerption

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Persecution

PERSECUTION

This entry consists of the following articles:

jewish experience
christian experience

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Persecution

Persecution

In colloquial usage the term persecution can refer to any identity-related maltreatment, either of a group or an individual. However, its historical and legal meanings, although still subject to a degree of ambiguity, are more precisely delineated.

Historical Meaning

Throughout history myriad groups have been maltreated because of their identity, with distinctions drawn on such grounds as religion, race, gender, culture, national origin, ethnicity, politics, or socioeconomic status. Persecuted groups have been identified through both positive and negative criteria. At certain junctures people were persecuted because they belonged to a particular group. At others people were persecuted because they did not belong to a particular group, usually that of the persecutor.

A range of different measures, in terms of both type and degree, have been referred to as persecution. This maltreatment has taken a variety of forms—corporeal punishment, material deprivation, psychological trauma, segregation, and other forms of discrimination.

Legal Meaning

Prior to World War II states protested one another's acts of persecution, especially when the victims were a minority group that shared a bond (e.g., religion, ethnicity, or national origin) with the protesting state. In some instances bilateral treaties were concluded between such states to regulate the treatment of a minority population. At times persecution led to, or was at least cited as a justification for, military intervention.

In the early twenty-first century persecution is clearly prohibited by international law. It constitutes a violation of international criminal law as well as human rights law. Although most violations of public international law involve only state responsibility, the commission of persecution, as a crime under international law, gives rise to the notion of individual criminal responsibility. In a legal context the international crime of persecution falls within the broader category of crimes known as crimes against humanity.

International Criminal Law

In 1998 the drafters of the Rome Statute of the International Criminal Court (ICC) reached agreement on a definition of persecution. According to Article 7(2)(g) of the Rome Statute, persecution means "the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity." However, for much of the twentieth century, despite its prevalence in fact, persecution as a crime under international law escaped precise definition.

Prior to World War II the principle of nonintervention, whereby states were prohibited from intervening in matters essentially within another state's domestic jurisdiction, was thought to pose an insurmountable obstacle to the international criminalization of such conduct.

Persecution first emerged as a specific crime under international law in the charter (the so-called London Charter) of the International Military Tribunal (IMT) at Nuremberg. Article 6(c) of the London Charter empowered the tribunal to prosecute:

Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The inclusion of crimes against humanity within the jurisdiction of the IMT was a watershed event in international law because it made punishable conduct that could be perpetrated by state authorities against their own nationals.

However, the cautious drafters were not prepared to depart entirely from the primarily interstate structure of classical international law. Under Article 6(c) of the Charter, persecution would constitute a crime against humanity punishable under the Charter only if it was committed in connection with another crime within the jurisdiction of the IMT (i.e., crimes against peace or war crimes), all of which would have had an international (i.e., interstate) dimension. In practice this meant that the IMT could not punish as such wrongful acts committed prior to the start of World War II.

Although the London Charter failed to provide a definition of persecution, the IMT made clear that the complete exclusion of Jews from German life prior to the start of World War II amounted to persecution. In so doing, it cited the adoption of discriminatory laws, the espousal of hatred toward Jews, discriminatory arrest and detention, the looting of Jewish businesses, the arrest of prominent Jewish businessmen, the confiscation of assets, the burning and demolition of synagogues, the creation of ghettos, restriction of freedom of movement, the imposition of a collective fine, and the organization of pogroms. Nonetheless, the IMT did not enter a conviction for any solely pre–World War II conduct, finding that it was prevented from doing so by the nexus requirement mentioned above.

A significant post–World War II development aimed at preventing persecution was the 1948 adoption of the Convention on the Prevention and Punishment of the Crime of Genocide. Although the Genocide Convention does not define persecution, it criminalizes a particularly severe form of it. Genocide is defined as the commission of certain inhumane acts with the intention of destroying, in whole or in part, a national, ethnical, racial, or religious group.

Extensive nondiscrimination provisions were also included in each of the four Geneva Conventions of 1949, which regulate the treatment of victims of armed conflict. The Fourth Geneva Convention, devoted to the protection of civilians in time of war, provides specific protection against persecution. Article 45 states, "In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs."

The end of the cold war witnessed the rejuvenation of international criminal law and, with it, further elaboration of the criminal prohibition of persecution. The United Nations (UN) Security Council's creation of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) in 1993 and 1994 spurred the rapid development of this area of international law.

Both tribunals were empowered to prosecute genocide, war crimes, and crimes against humanity. Persecution was mentioned in the statutes of both tribunals as a form of crime against humanity. Although neither statute contains a definition for the crime of persecution, both provide more elaborate definitions of crimes against humanity than was advanced in the London Charter.

Although the definitions for crimes against humanity in the two statutes are not identical, their broad outlines are similar: They both make a distinction between enumerated inhumane acts and contextual elements. The list of inhumane acts is identical—namely, murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial, and religious grounds; and other inhumane acts. Notably, persecution is the only enumerated act committed on discriminatory grounds. Both statutes require, as a contextual element, that such an act (or acts) be committed as part of an attack against a civilian population.

There are significant differences in the contextual elements of the definition in each statute. Although both definitions require that the enumerated acts be committed as part of an attack against a civilian population, the ICTY statute also requires that the acts be committed during armed conflict. While the ICTR definition of crimes against humanity has no such armed conflict requirement, it does mention discrimination, something absent from the ICTY definition. Under the ICTR definition of crimes against humanity, the attack of which the inhumane act is a part must be discriminatory in nature. Thus, for the crime of persecution to have occurred, it must be shown that the act was persecutory and that the overall attack of which it was a part was also discriminatory. However, although the persecutory act must have been discriminatory on political, racial, or religious grounds, the possible grounds of discrimination for the broader attack also include nationality and ethnicity.

A number of significant advances of particular relevance to the issue of persecution have evolved though the practice of the tribunals. First, the jurisprudence of the tribunals has made clear that the contextual element of armed conflict in the ICTY statute and the contextual element of discrimination in the ICTR statute are merely jurisdictional in nature and do not form part of the definition of crimes against humanity under customary international law. Second, the tribunals have also found that crimes against humanity need not be supported by some larger government policy. Third, in interpreting their respective statutes, both tribunals have elaborated a definition for persecution—essentially, an intentional and severe deprivation of fundamental rights on discriminatory grounds. Fourth, the ICTY has suggested that a single individual can be the victim of persecution, as long as the contextual elements for crimes against humanity have otherwise been met.

As for the range of persecutory maltreatment, the ICTR and ICTY have found that each of the acts enumerated within their statutes' provisions for crimes against humanity may qualify as persecution. In addition, the ICTY has established a "same level of gravity" test for acts not listed within the crimes against humanity provision of its statute. Only acts of comparable gravity constitute persecution. However, under such a test, acts are examined cumulatively; thus, the cumulative effect of even noncriminal acts may be sufficient to reach the same level of gravity as the enumerated acts. In general, crimes involving property are not considered to be of sufficient gravity to constitute persecution, unless they threaten the livelihood of the victim population. Nonetheless, several ICTY judgments have found that the destruction of property can amount to persecution when committed in conjunction with other inhumane acts.

Many of these developments are reflected in the Rome Statute's definition of persecution as constituting a crime against humanity. In line with the findings of the tribunals as to the content of customary law, the contextual elements for crimes against humanity in the Rome Statute include neither a requirement for armed conflict nor one for discriminatory animus. As noted above, persecution is defined as "the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity." According to Article 7(h) of the statute, the ICC has jurisdiction to prosecute "[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . , or other grounds that are universally recognized as impermissible under international law." However, persecution alone is not a crime within the jurisdiction of the ICC, even when the contextual elements for crimes against humanity are met. Recalling the nexus requirement set forth in the London Charter for all crimes against humanity, the drafters of the Rome Statute chose to limit the prosecution of persecution to situations in which persecutory acts are committed "in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court."

Refugee Law

The Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, declares in Article 14 that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution." The 1951 Convention Relating to the Status of Refugees (the so-called Refugee Convention), together with its 1967 Protocol, provides for the implementation of this right by requiring contracting states to afford a range of rights to any individual who

[o]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Further, contracting states must refrain from expelling or returning a refugee "in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." However, as with earlier instruments, the Refugee Convention failed to define persecution.

To alleviate the suffering of groups fleeing persecution, the UN General Assembly established in 1950 the Office of the UN High Commissioner for Refugees. According to its statute, the UN High Commissioner for Refugees is charged with providing international protection, under the auspices of the UN, to refugees and with seeking permanent solutions to the problem of refugees by assisting governments and nongovernmental organizations (NGOs) to facilitate their voluntary repatriation or assimilation within new national communities. This protection takes various forms, including monitoring the treatment of refugees and striving to provide a minimum level of humanitarian relief to such individuals.

Discriminatory Grounds

As is apparent from the provisions cited above, a degree of variation exists among the types of discrimination required to constitute persecution as recognized under current legal instruments. While persecution under the ICTY and ICTR statutes must be committed on political, racial, or religious grounds, the Refugee Convention recognizes persecution on the grounds of race, religion, nationality, membership in a particular social group, or political opinion. The practice of some national courts has included other grounds, such as gender, within the category of "social group."

The statute of the ICC has the most extensive list of grounds, including "political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law." The wording at the end of this provision will enable the list of categories to expand as the international community reaches consensus on additional grounds. The mention of gender makes clear that gender refers only to the "two sexes, male and female, within the context of society." The inclusion of this qualifying phrase appears to represent an attempt by the drafters to prevent the ICC from interpreting gender to include sexual orientation, as a number of other human rights mechanisms have done in considering discrimination based on sexual orientation to constitute a form of sex discrimination.

International Human Rights Law

Although the major human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and their regional counterparts, do not expressly refer to persecution, these instruments provide broad protection from discrimination in general.

Even more extensive protection is provided under the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, and related regional human rights treaties. These conventions provide far-reaching protections encompassing economic and social rights as well as civil and political rights, and penetrating both the public and private spheres. In addition to a guarantee of equality of treatment, these conventions require states to take positive steps toward ensuring that groups experience substantive equality.

Furthermore, human rights treaties provide protection specifically for minority groups. For example, the International Covenant on Civil and Political Rights states that persons belonging to minority groups "shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language."

Nonstate Actors as Agents of Persecution

Although international criminal law, international human rights law, and refugee law are all distinct areas of public international law, there is a dynamic interplay among them. One development that cuts across all three fields is the increasing recognition of nonstate agents of persecution, and attempts to assign accountability for their conduct and to provide redress for their victims.

Traditionally, public international law governs relations among states. Notwithstanding the persistence of the classical interstate structure of the international legal system, over the course of the twentieth century international law evolved significantly in its relation to individual human beings. Two phenomena in particular led to astonishingly rapid developments in the substance of international law, and even the very structure of the international legal system. The first is the universal recognition that the protection of human dignity is a proper concern of international law, and the second is the accumulation and exercise of power by nonstate actors. As a result, the expanding lens of public international law has increasingly examined the conduct of nonstate actors.

Although it was unclear whether the London Charter's definition of crimes against humanity could apply to persecution by nonstate actors, the practice of the ICTY and ICTR has made clear that persecution may be committed by nonstate actors, with the ICTY in particular convicting a number of nonstate actors for crimes against humanity. While the Rome Statute requires a policy as a contextual element for all crimes against humanity, such a policy may be a "State or organizational policy," clearly indicating that persecution may be committed by individuals with no connection to the state.

Similarly, national courts have interpreted persecution within the context of refugee law as including inhumane treatment by nonstate actors, particularly when the state has acquiesced to such treatment. Further, various human rights instruments elaborated in the second half of the twentieth century have all been interpreted to encompass, albeit to varying degrees, conduct committed by nonstate actors.

Remedies

A variety of remedies under domestic and international law are available, depending on the jurisdiction in which the persecution occurs whether or not the state involved is a party to any of the above-mentioned treaties.

As for remedies within the municipal sphere, most states have some form of nondiscrimination legislation that may be invoked in domestic courts. Such legislation could include protection from discrimination in a range of fields, from employment and education, to health care and participation in public life. Some states also have hate crimes laws, which provide increased penalties for crimes committed on discriminatory grounds. As most countries are parties to the Refugee Convention, most domestic legal systems also allow for the possibility of asylum for victims of persecution.

On the international level, remedies exist in both international criminal law and human rights law. An increasing number of international criminal justice mechanisms exist, most notably, the ICC. The ICC has potentially worldwide jurisdiction as long as the perpetrator is the national of a state party, or if the persecutory act was committed on the territory of a state party. The ICC is empowered not only to prosecute the perpetrator, but also to provide reparations to victims.

The various human rights regimes discussed here have established monitoring mechanisms that are capable of providing varying degrees of redress to victims. The focus of such mechanisms is the responsibility of the state and its obligation to make reparations for human rights violations suffered by victims. Such reparations may encompass a range of measures, including amendment of domestic law, alteration of existing practices, prosecution of perpetrators, and rehabilitation and compensation of victims.

SEE ALSO Cathars; Catholic Church; Huguenots; Inquisition; International Court of Justice; Jehovah's Witnesses

BIBLIOGRAPHY

"Charter of the International Military Tribunal." Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, art. 6, 82 U.N.T.S. 279. Available from http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm

Preparatory Committee on the Establishment of an International Criminal Court, Working Group on Definition of Crimes (1997). Draft Consolidated Text, Crimes Against Humanity. UN Document A/AC.249/1997/WG.1/CRP.5.

Prosecutor v. Milomir Stakic. Case No. IT-97-24, Judgment, ICTY Trial Chamber II (July 31, 2003).

Rome Statute of the International Criminal Court (1998). Available from http://www.un.org/law/icc/statute/romefra.htm.

John Cerone

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