State Security Regimes and the Right to Freedom of Religion and Belief

Changes in Europe Since 2001

Karen Murphy

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136178856
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

The question of to what extent, manifestations of religious beliefs should be permitted in the European public sphere has become a salient and controversial topic in recent years. Despite the increasing interest however, debates have rarely questioned the conventional wisdom that an increase in the range of security measures employed by a government inevitably leads to a decrease in the human rights enjoyed by individuals.

This book analyses the relationship between state security regime changes and the right to religious freedom in the EU. It presents a comparative analysis of the impact these regime changes have had on the politics, policies and protections of religious freedom across the EU member states in the post-2001 environment. The book provides a timely investigation into the role of national legislation, the European Court of Human Rights, and societal trends in the protection of religious freedom, and in so doing demonstrates why the relationship between state security and religious freedom is one of the most socially significant challenges facing policymakers and jurists in Europe at the present time.

1 Introduction

The issue of religious freedom and state security

The question of whether, and if so to what extent, manifestations of religious beliefs should be permitted in the European public sphere has become a salient and controversial topic in recent years across the European Union (EU). High- profile situations, causally attributed to the poor integration of immigrants, politicisation of religion, or distrust of the secular state have placed the issue onto the media, public and political agendas. However, despite the increasing interest, debates have rarely questioned the conventional wisdom that an increase in the range of security measures employed by governments inevitably leads to a decrease in the human rights enjoyed by individuals. Such axioms are a poor guide to public debate. A wealth of literature on the relationship between religion and society/law/political violence/terrorism/the European public sphere has emerged and evolved in recent years, adding to a coherent body of literature on religion and equality/non-discrimination/gender/politics/ education. However, authors have rarely questioned the relationship between state security regimes and religion as a distinct relationship in itself. This book thus presents an exploration of the actual philosophical, legal and empirical relationships between state security and religious freedom in Europe over the last two decades. The findings and arguments demonstrate the significance of understanding this relationship for policy makers and jurists seeking to protect religious freedom, carve space for religion in the public domain, and continue to engage in protection of a secular and secure state.

Human rights represent a core element of liberal democracy. Even outside the framework of international law, the ‘notion’ of human rights is a funda- mental element of liberal democracy, and in Europe we have come to know human rights as a precious asset for citizens and non-citizens alike. However, it has been noted that when we talk about the future of human rights, we should be least optimistic when we place them in the same space as national security, which ‘these days invariably means counter-terrorism’.¹ The right to freedom of religion and belief is a fundamental norm of human rights, and is thought to be one of the most precious rights for humankind. However, it has come under threat in recent times, and, for this reason, it is imperative that we look now at how we can continue to protect this fundamental right, and continue to enjoy the right in times to come.

1.1 State security and religious freedom in Europe: the context

In Europe, and elsewhere, citizens have witnessed a rapid development of security measures, often called counter-terrorism measures, in recent years. Some of these initiatives are more defensible than others, and many of these have been accused of sidelining human rights, and leaving them as a second- ary consideration in what is typically referred to as the fight against terror.² A wealth of research has produced a vast literature regarding the impact that these measures have on individual human rights, and how best these meas- ures should be managed. However, the rate at which many of these develop- ments have taken place (often attributed to the exigencies of particular situations) has meant that research does not always keep pace and many ques- tions have remained unanswered. These questions include an interrogation of the alternative policy directions open to governments and an examination of human rights which are indirectly affected, rather than directly limited, by security measures, including religious freedom.

This discussion is set in the context of a debate about the security–rights relationship. There is a conventional wisdom in academic literature regarding the expected inverse relationship between security measures and human rights.³ Generally the rights thought to be most affected are rights such as privacy, due process, expression, and so on. However, for a number of reasons (some of which are specific to the current situation) one would expect reli- gious freedom to also suffer. These reasons include: (a) the position of religion within the framework of discussions on security threats; (b) the indivisibility of rights (and thus the indivisibility of religious freedom vis-à-vis other rights); (c) the lack of a tangible boundary between the public and private spheres of religion; and (d) conflicts with related human rights.

In the last decade, the question of the place of religion in European society (or societies), and in particularly in European public life, has increasingly been the subject of attention in academic literature and political debate. Some liberal theorists and human rights defenders strongly advocate that manifestations of religion should be restricted to the private sphere, in order to maintain a neutral and secular space in which all people, of all origins and beliefs, can be treated equally. Other human right defenders argue conversely that people of faith should be permitted to manifest their religion freely, in accordance with their rights as enshrined in international human rights doctrines (including in particular the right to freedom of religion and belief, the right to non-discrimination, and the right to freedom of expression). Law and religion is emerging as an area of scholarship,⁴ with a wealth of research being produced which looks at accommodation of religion in public life in contemporary Europe.⁵ Some of these studies address issues such as accom- modating for religion in employment and education, and its relationship with free speech. The controversy following the publication of the ‘Danish cartoons’, the debates around whether construction of minarets could be banned in Switzerland and ongoing conversation in numerous countries about whether students, teachers and public sector workers should be allowed to wear religious symbols in their place of education or work demonstrate an interest and urgency around the questions of religious freedom in Europe and what its scope and limitations are.

Much research on the topic of religious freedom exists,⁶ but little on the subject of religious freedom and national security (with some exceptions). Research on religious freedom and state security has not focused to date on observable experiences, but on expected outcomes and theoretical discus- sions.⁷ In response to this gap, I address herein the following question: is there a relationship between security regimes and religious freedom? If so, how should these two goods be reconciled for the enjoyment of both?

Complicating this debate is the parallel discussion about the causes, and appropriate response to, threats to national security by national or international networks that use acts of terrorism to achieve their goals. Concern has been raised in academic, legal and political spheres regarding the compatibility of some manifestations of religious freedom with the European democratic, pluralist and secular sphere.⁸ EU institutions acknowledge the threat of radi- calised religious groups,⁹ and there is a body of limited body of academic literature and a political discourse which cautions on the threat posed by facilitating wide religious freedom protection.¹⁰

Missing from this debate is a close look at the relationship between these parallel issues, and it is this question that this book responds to. By looking at changes in state security apparatus and religious freedom protections over a 14-year period, the elements of religious freedom (as envisioned by the ECHR and other international treaties) most at risk of erosion are identified, and the environment and processes that facilitate or promote that erosion are identified. Finally, recommendations are offered with a view to strengthening religious freedom protection without calling for a corresponding modifica- tion of security apparatus.

1.2 Human rights and security: underlying assumptions

While the human rights doctrine has been evolving for centuries, the articula- tion of human rights in international law in its current form has existed for just over half a century and was a response to one of the greatest tragedies in human history: the Holocaust. The UN system was developed following the Second World War to protect future generations from ‘the scourge of war’ and to reaf- firm faith in fundamental human rights. However, while all rights have been fought for, and while war inspired the development of international human rights law, acts of violence in recent years have inspired a less palatable devel- opment for human rights: incidents of terrorism and the (salient or otherwise) threat of dangers to state security have provoked and/or facilitated a roll-back in human rights protection in liberal Western developed democracies.

Academic literature on the subject of human rights and their relationship with counter-terrorism measures reveals a conventional wisdom which assumes that increased national security measures result in a decrease in the protection of human rights. This presumption is based on both theory and practice. In theory, enactment of security measures often requires that more power be vested in the executive, or in the police at the behest of the execu- tive, at the expense of the liberty of the individual. In practice, evidence suggests that during times of war or public emergency, the state will often limit human rights in order to preserve itself, and to protect the collective freedom of the community. Violent emergencies tend to bring about a rush to legislate, in order to make the country more secure and better able to facilitate emergency response. International bodies fail to intervene and governments are encouraged to take radical action by the public, who are motivated by personal fear, as well as the ‘obsessive public discussion of possi- ble further attacks’.¹¹ Such a process was evident following the events of 11 September 2001, which resulted in a shift of law enforcement resources towards combating terrorism, both at international¹² and domestic level.¹³ In the years that followed, report after report documented human rights abuses, directly or indirectly related to counter-terrorism measures, in both the developed and developing world.

Typically, talk about human rights and counter-terrorism provokes thoughts of due process rights, freedom from torture, freedom of liberty and the right to privacy. The impact on socioeconomic rights, particularly in the developing world, has also been documented.¹⁴ However, religious freedom has received inadequate attention in the research concerning the rights–secu- rity relationship.¹⁵ In response to this gap, I present in this book a compre- hensive examination of the relationship between state security measures and religious freedom, assessing whether the conventional wisdom that more security leads to fewer rights applies to religious freedom, and whether it is possible to protect both simultaneously.

This issue is grounded in international human rights law, but the questions considered here are located at the intersecting points of many disciplines, including security studies, political science and law. Political science and law have provided a wealth of literature on the ‘new wars’ argument, which was advanced in the years following the 2001 attacks on the World Trade Center and the Pentagon. This argument states that, in light of what national governments perceive to be new threats to the security of the state and/or its citizenry, the world is facing a ‘new type of war’ and that existing laws cannot accommodate for such a paradigm.¹⁶ This has led to the acceptance of new, extraordinary measures and, since 2001, academics have questioned whether human rights law and international humanitarian law are now passé and in need of revision to deal with modern-day terrorism, noting that the means by which war is waged have changed dramatically, and that existing law does not contemplate or provide for the challenges posed to national security.¹⁷ While some consideration to human rights is given in these debates, this remains secondary to the security priority. European states have witnessed a rapid development of security measures in recent years. A wealth of research has produced a vast human rights literature on the impact that these measures have on individual human rights. Scholars have described the sacrifice of human rights ‘on the altar of national security’ and the disregard for existing capacity within human rights systems to inform responses to terrorism by international institutions post-9/11, arguing that defence of human rights is more vital than ever.¹⁸

In response to the ‘new wars’ claim, human rights literature, emanating from the international human rights law literature as well as from disciplines such as political science and ethics, has asserted that tighter security does not make us safer. This literature also argued that tighter security can even have the opposite effect,¹⁹ and has argued either that: (a) security and liberty are not competing social goods, but, rather, human rights can accommodate for security policies and the two can be mutually inclusive and complementary;²⁰ or (b) the protection of human rights supersedes the security claims and is the most effective way of protecting the citizenry.²¹

I take as an underlying assumption that there is no fundamental contradic- tion between security and liberty/human rights, and that human rights actu- ally enhance security. While many commentators and jurists argue that there is an inevitable trade-off between rights and security, and that when such a trade-off occurs security must be the priority.²² The human rights doctrine envisages and provides for emergency security situations, thus allowing secu- rity issues to be addressed within the human rights framework.

Absolute protection of human rights at all times is not always viable. Thus, mechanisms for limiting or derogating from human rights norms have been crafted and developed since the birth of international human rights law. These evolving mechanisms allow the state to prioritise security protection over civil liberties absolutism in the name of human rights rather than despite it, using the principles of states of emergency, such as necessity, proportionality, non- discrimination, and so on.²³ Thus, the security–human rights argument is not a zero sum game. It has been long acknowledged that there will be times during the life of a nation when some liberties will need to be limited in order to protect the security of the nation. In this way, international human rights law provides for security protection, in a way which prioritises the individual human rights protection, rather than state security as an end in itself.

1.3 Methodology

I have selected the EU as the subject of my study for two reasons. First, EU member states h...

Table of contents

• Front Cover
• State Security Regimes
• Routledge research in human rights law
• Title
• Copyright
• Contents
• Tables
• Acknowlegments
• List of abbreviations
• 1 Introduction: the issue of religious freedom and state security
• 2 Protections and critiques of the right to freedom of religion and belief
• 3 State security regimes and religious freedom in Europe: a multi-state analysis
• 4 Rethinking the relationship between state security and religious freedom
• 5 Religious freedom in liberal nationalist states: Denmark and the Netherlands
• 6 Religious freedom in securitised states: Germany and the United Kingdom
• 7 Religious freedom and state security in Europe: findings and recommendations
• Bibliography
• Index