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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

John Cerone