bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Liberty of Parents to Ensure the Religious and Moral Education of Their Children
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter examines the issues concerning the travaux préparatoires, general comments, and jurisprudence of the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights regarding the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions. This chapter notes that there are several ‘actors’—as rights holders and/or duty-bearers—whose rights, liberties, duties, and interests need to be considered and possibly reconciled in case of clashes, i.e. children, their parents (or when applicable legal guardians), the State, and religious communities. In terms of issues of interpretation, this chapter deals with the two opposite questions whether there is a right to remain uninfluenced by religious upbringing, and whether parental rights risk being eroded by recognizing rights of the child.
Registration
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter focuses on several issues concerning the registration of religious communities. While ‘registration’ may appear to be a merely technical theme of less political significance, the issue is actually a source of major human rights problems in the area of freedom of religion or belief. Quite a number of States assume that only members of ‘registered’ religious communities should be allowed to fully practise their freedom of religion or belief. Moreover, registration procedures are often overly bureaucratic, cumbersome, and thus not in the service of freedom of religion or belief. This chapter derives from the reports of Special Procedures a list of ‘do’s and don’ts’ for the formulation of registration laws and procedures concerning the acquisition of legal status. In terms of issues of interpretation, this chapter discusses misunderstandings with regard to the term ‘recognition’, which should be avoided in the context of registration procedures.
Communicate with Individuals and Communities on Religious Matters at the National and International Level
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter focuses on issues concerning the right to communicate on religious matters at the national and international level. Such communications not only encompass transmitting and receiving verbal or written religious messages, but also personal contacts, processions, and pilgrimages. At the domestic level, processions or parades may provoke violent clashes and public order problems, often leading the State authorities to ban or restrict such processions. Meanwhile, at the international level, religious communities and their pilgrimage sites are usually not confined to the territory of only one State, which naturally leads to the need for international communications and pilgrimages. This situation illustrates the overlap of the right to communicate in matters of religion also with the rights to disseminate publications and to teach a religion or belief. Issues of interpretation include the questions whether communications are also covered by this freedom if they are made for proselytizing purposes or if they involve transfrontier travels in order to attend a religious meeting or undertake a pilgrimage.
Discrimination on the Basis of Religion or Belief/Interreligious Discrimination/Tolerance
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter focuses on religious discrimination. Not only does freedom of religion or belief prohibit undue infringements into a person’s religious freedom; it also prohibits discrimination—the denial of equality and unfair treatment based on religion. The discussion on discrimination has become more and more complex in recent debate, both with a view to different types of actors (State institutions, de facto authorities, and non-State institutions) and to different forms of discrimination (direct, indirect, structural, intersectional). While many experiences of discrimination continue to be overt and recognizable, more sensitivity has also arisen concerning concealed forms of discrimination, such as indirect discrimination, sometimes hidden under seemingly neutral rules. Reasonable accommodation should be used to tackle these phenomena. Moreover the State bears the responsibility to address the root causes of intolerance, societal discrimination, and violence committed in the name of religion.
State Religion
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter analyses different ways of organizing the relationship between State and religious communities. Although official State religions are not forbidden in international human rights laws, they usually give rise to critical questions and concerns, in particular in light of the principle of non-discrimination. Many formally ‘secular’ States also privilege certain religions, often under the auspices of protecting their national identity or a particular cultural heritage, with discriminatory implications for people not following the dominant religions—illustrating that the term ‘secularism’ can carry very different meanings. Under freedom of religion or belief, States should provide an inclusive space for the free unfolding of religious or belief-related diversity for all, free from fear and free from discrimination. A ‘respectful distancing’ of State authority and religious communities—possibly in the name of an ‘inclusive secularism’—seems ultimately necessary in the interest of providing space for everyone’s freedom of religion or belief.
Women
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter discusses the right to freedom of religion in relation to women’s right to equality and non-discrimination. Based on a holistic understanding of the positive interrelatedness of all human rights, practical synergies between freedom of religion or belief and gender equality are not only possible; they are a reality in many cases. Unfortunately, this is sometimes ignored or even denied. Some observers tend to turn concrete conflicts arising in the intersection of these two rights into an abstract normative antagonism, to the detriment of a holistic view. The chapter explores policies aimed at eliminating stereotypes and prejudices, problems arising from religious family laws, the autonomy of religious institutions, educational matters, and other issues. It also deals with conflicts related to issues of sexual orientation and gender identity.
Children
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter examines the right of the child to religious freedom. The Convention of the Rights of the Child confirms the status of each individual child as a rights holder, including in the area of freedom of religion or belief. At the same time, the child needs a facilitating environment usually provided by the family. Parents have rights and duties to provide direction to the child in the exercise of his or her freedom of religion or belief in a manner consistent with the evolving capacities of the child. This has practical implications for religious socialization within the family and/or community, religious education in the school, participation or non-participation in religious community activities, the prevention of harmful practices, and other areas.
Minorities
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter addresses issues concerning the rights of persons belonging to minorities in the area of religion or belief. Unlike in many traditional concepts of ‘minority protection’, which typically singled out specific groups for specific protection, modern human rights law is not based on any essentialist notions of pre-defined minorities, but always takes as its starting point the self-definition of human beings, who should be free to express their identities as individuals and in community with others. The entry point for justifying particular attention and additional measures of empowerment is the experience of increased vulnerability, often amounting to forced assimilation. Persons belonging to religious minorities need an adequate infrastructure which allows them to develop their community life in a sustainable manner, if they so wish. Safeguarding the rights of persons belonging to minorities also requires measures against discrimination, not least by tackling prejudices and stereotypes. This chapter also explores issues concerning religious practices of indigenous peoples.
Prohibition on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter addresses three aspects of torture in relation to the right to freedom of religion or belief. First, torture and other cruel, inhuman, or degrading treatment or punishment on the grounds of religion or belief. The prohibition of torture is recognized as forming part of jus cogens and entailing an erga omnes obligation of States towards the international community as a whole. Second, torture and other inhuman treatment may also arise from understandings of what particular religious scriptures or traditions allegedly require. They may be carried out by individuals animated by religious hatred, may enjoy the complicity of the Government, or may even be carried out by the authorities themselves. As discussed, human rights can never consider such actions a legitimate exercise of freedom of religion or belief. Finally, the religious sensitivities of detainees or prisoners of war (irrespective of the reasons for their incarceration) may be exploited in order to subject them to torture and other inhuman treatment, in other words utilizing the religion of detainees in order to subject them to tailored torture or inhuman treatment.
Legislative Issues
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter discusses the importance of legislation in order to respect, ensure, fulfil and protect freedom of religion or belief, without discrimination. In many instances, States are called upon to make changes to their legislation, for example by adopting new laws or amendments in line with international standards, by clarifying definitions in legal provisions, by implementing freedom of religion or belief standards and equal treatment, and by adopting constitutional amendments. However, the duty to ‘give effect’ to human rights goes beyond legislative provision and, as the text of article 2 of the International Covenant on Civil and Political Rights emphasizes, it includes other ‘necessary steps’ to implement these rights. This includes oversight, statistical data that may point to gaps, and independent supervisory bodies to ensure follow-up. This chapter also stresses the importance of creating space for religion and belief diversity for all, without fear and discrimination, and with a respectful functional distancing and distinction between the State and religion(s) or belief(s). This is expanded on in detail in chapter 2.2.
The Persistent Objector Rule in Case Law and State Practice Post-1945
Authors: Green James A 
Published: June 2017

Abstract
This chapter continues to assess the legal status of the persistent objector rule by examining its basis in post-1945 case law and post-1945 state practice and opinio juris. The support for the existence of the persistent objector rule in the academic world, while being relavant to, and perhaps indicative of, the emergence of the rule, cannot be viewed as enough to constitute the rule as a matter of international law in itself. Investigation in this chapter reveals a relatively small but cumulatively convincing degree of support for the persistent objector rule. Further investigation into this body of practice will allow for the analyse of the mechanics of the rule: it is one thing to conclude that it exists, but how does it function?
The Persistence Criterion
Authors: Green James A 
Published: June 2017

Abstract
This chapter examines the persistent objector rule's ‘persistence’ requirement. The chapter argues that given the usual name for the rule, a requirement of persistent objection is referenced across the literature as being a key criterion for the rule's operation. More importantly, it can also be identified in state practice. The chapter first confirms that a single objection, or a small number of objections, will not be sufficient to gain exemption to an emerging norm of customary international law. It also considers the underlying rationale for the persistence requirement. The voluntarist understanding of international law cannot provide an adequate explanation for the need for persistence. Finally, the chapter engages with the tricky question of how persistent objection must be before a state can gain exempt status. The view is taken that there is no exact answer to this question; the necessary degree of persistence is context-specific, based on a range of factors (including extra-legal ones).
Ad Hoc Declarations of Acceptance of Jurisdiction
Authors: El Zeidy Mohamed M 
Published: June 2017

Abstract
Article 12(3) of the ICC Statute enables a non-State Party to the Statute which has a direct link to the crimes to consent to the Court’s exercise of jurisdiction on an ad hoc basis and subject to the conditions provided for in Article 12(2). This chapter examines the background and implications of the different ad hoc declarations of acceptance lodged by Palestine as of 2009. It discusses issues related to authority, scope, retroactivity, and withdrawal of declarations, and options of review by the Pre-Trial Chamber. It analyses the approach of the OTP to the declaration made on 22 January 2009, and issues related to the subsequent declarations. It argues that the experience of Palestine before the Court provides an incentive to rethink of more productive ways to respond to potential future declarations lodged by entities with controversial status under international law.
Self-Referrals as an Indication of the Inability of States to Cope with Non-State Actors
Authors: van der Wilt Harmen 
Published: June 2017

Abstract
Self-referrals have been one of the trademarks of early complementarity practice of the ICC. What they all have in common is that governments contend that they are unable to conduct fair and effective criminal proceedings against non-state actors over whom they do not wield control, and therefore seek the assistance of the ICC. This chapter investigates how the ICC has reacted to these claims of inability, and demonstrates that the ICC has largely side-stepped the issue by holding that a state’s inactivity renders a situation admissible and precludes any assessment of its unwillingness or inability. The ICC provided more clarity on inability and its parameters in a decision on Libya’s challenge to the Court’s jurisdiction, but the tools of the ICC to move against non-state actors remain defective-at least outside the scope of armed conflicts. This invites a reconsideration of substantive parts of the Rome Statute (e.g. in relation to terrorism).
Selecting Situations and Cases
Authors: Schabas William A 
Published: June 2017

Abstract
This chapter analyses selection and charging choices from an observer’s perspective. It re-visits the coherence and transparency of prosecutorial choices and charging practice, based on an analysis of ICC choices, criteria (e.g. ‘gravity’), and methods. It argues that existing practice has made the ICC vulnerable to criticisms of ‘selective justice’ and politicization, for example in the decisions reached with respect to Palestine and Iraq. It claims that further attention needs to be given to the inconsistency in the Prosecutor’s position, whereby selection of a situation is more or less mandatory once the objective criteria are met yet selection of cases is not. It notes that in reality, a great deal of discretion is involved in the selection both of situations and of cases.
Co-Perpetration
Authors: Ohlin Jens 
Published: June 2017

Abstract
The current doctrines of co-perpetration, most notably the control theory of perpetration, are heavily influenced by German criminal law theory. To some critics, the ICC’s importation of Claus Roxin’s control theory is evidence that one legal culture is having an outsized influence on the direction of the Court’s jurisprudence. This chapter situates the current doctrines within historical context. It lays out the foundations of the ICC doctrine of co-perpetration and evaluates the most notable objections to it, including alternate versions of co-perpetration. The chapter argues that the criticism about the ICC becoming too weighted towards the criminal law approach of one particular system is unfair, since the Court engages in first-order questions of criminal law theory. Nevertheless, the criticism remains that the Court has done insufficient work to justify its methodology and properly ground its importation of domestic criminal law theory within a general theory of sources of international law.
Charging War Crimes
Authors: Newton Michael A 
Published: June 2017

Abstract
The Rome Statute was designed to largely align criminal norms with actual state practice based on the realities of warfare. Article 8 embodied notable new refinements (e.g. in relation to disproportionate attack under Article 8(2)(b)(iv)), but did so against a backdrop of pragmatic military practice. This chapter dissects the structure of war crimes under Rome Statute to demonstrate this deliberate intention of Article 8 and then describes the correlative considerations related to charging practices for the maturing institution, including command responsibility. When properly understood and applied in light of the Elements of Crimes, the Court’s charging decisions with respect to war crimes ought to reflect the paradox that its operative provisions are at once revolutionary yet broadly reflective of the actual practice of warfare.
Cumulative Charges and Cumulative Convictions
Authors: Stuckenberg Carl-Friedrich 
Published: June 2017

Abstract
In ICCs and tribunals, defendants are typically accused or convicted of the commission of multiple crimes based on the same conduct. Fifteen years after the first decisions of the ad hoc Tribunals on the admissibility of cumulative charges and cumulative convictions, a robust, albeit primitive, set of judge-made rules has emerged, but many questions remain open. This becomes apparent upon closer analysis, which allows the classification of all conceivable situations of concursus delictorum according to a simple theoretical matrix. This chapter argues that there are more issues in this area of the law to be addressed beyond ‘speciality’ to which the firmly established Čelebići test solely refers. Legal principles should be carefully revised and developed by the ICC.
Trial Procedures—With a Particular Focus on the Relationship between the Proceedings of the Pre-Trial and Trial Chambers
Authors: Friman Håkan 
Published: June 2017

Abstract
The length of proceedings before the ICC has been an issue of concern. ICC proceedings at pre-trial and trial have been slow and can be improved. Based on a study of existing cases (e.g. Lubanga, Katanga and Ngudjolo Chui), this chapter highlights some areas that deserve closer review, in particular, consistency and coordination between the Pre-Trial and Trial Chambers, both of which are engaged in trial preparations. The chapter shows that the current combination of the two procedural stages is dysfunctional, and argues that the centre of gravity in criminal proceedings should be the first-instance trial, while the confirmation hearing should be seen as a supplementary process. The space of the Pre-Trial Chamber to prepare trial by resolving issues of disclosure, redactions, or admissibility of evidence is rather limited.
Sitting on Evidence?
Authors: Khan Karim A A , Buisman Caroline 
Published: June 2017

Abstract
The right to full and timely disclosure is one of the most fundamental rights of suspects and accused persons before the ICC. Regrettably, it is also the most violated right. This Chapter examines the difficulties the defence has encountered as a result of late, inadequate, or non-disclosure of material relevant to the case. Drawing heavily on the authors’ own experiences before the ICC, this contribution argues that the current disclosure regime of the ICC places an inordinate burden on limited defence resources, and improperly and unnecessarily constrains the ability of defence teams to effectively and efficiently prepare for and conduct the defence of the client. The Chapter makes a number of proposals for improvement, including management of time limits for final prosecution pre-trial disclosure, protective measures, transparency, and internal prosecution review.
Victim Participation Revisited—What the ICC is Learning about Itself
Authors: Vasiliev Sergey 
Published: June 2017

Abstract
The Chapter examines key turns in ICC jurisprudence in the area of victim participation. The model of victim participation under the Statute poses challenges in terms of effectiveness and sustainability, and victim participation has also emerged as a governance issue and a matter of concern for the ASP. This Chapter analyses hurdles faced by the Court in implementing victim participation (e.g. application, participation at trial, and representation). It argues that the Court deserves praise for developing creative solutions to balance ‘meaningful’ and ‘sustainable’ participation, and claims that the ICC should rediscover itself as a retributive court and free itself from the ‘restorative complex’. Meaningful participation essentially means one aligned with the Court’s core mandate and functions of criminal process (i.e. the determination of truth) and requires emphasis on collective forms of application, participation, and representation.
Completion, Legacy, and Complementarity at the ICC
Authors: Evenson Elizabeth , Smith Alison 
Published: June 2017

Abstract
This Chapter examines some of the key issues the Court and its States Parties will need to address to define the concept of completion for the ICC. While recognizing that completion has a number of unique features in the ICC context, this contribution identifies some of the lessons learned from strategies of other tribunals. It focuses on three key areas: capacity-building, outreach, and archive management. It argues that the consolidation of the Court’s legacy in situation countries is at the heart of a successful completion strategy, and suggests that the Court should draw a close connection between completion and positive complementarity. Capacity-building of national jurisdictions should be a pillar of completion strategies across the Court’s situations. The ICC will need to develop a working model for completion and establish methods (e.g. consultation with affected communities and national authorities) to adapt that model to a given situation.