East-West Church & Ministry Report
Vol. 11, No. 1, Winter 2003, Covering the Former Soviet Union and Central and Eastern Europe



International Guarantees of Liberty and the Slippery Slope of Restrictions on Radical Islam in Kazakhstan and Russia

Lauren B. Homer

Radical Islam
For purposes of this article, the term radical Islam refers to the relatively new and emerging teachings of Osama Bin Laden, Al Quada, and their associates, often called "Wahhabis" in Russia and Central Asia and referred to as Islamists by other writers. Radical Islam advocates 1) holy war against Christians, Jews, and Western states who support them; 2) all possible efforts to bring down the governments of, among others, the United States and Russia, to destroy their economies, and to destroy their populations and armies; and 3) the creation of a theocratic state in which practitioners of other faiths are eliminated or severely restricted.

To date, expressions of radical Islam outside traditionally Islamic nations have included terrorist acts against innocent civilians, in particular, the bombing of buildings in Argentina, Africa, Russia, Israel, and the United States, most notably on 11 September 2001. Of course, there has also been recruitment of members and proselytization of the doctrines of radical Islam in those countries.

Another significant set of actions of radical Islam has involved attempts to overthrow moderate or democratic governments in nations with significant or majority Muslim populations. Its goal is to establish theocratic states that espouse and are subordinate to the views of radical Islam and that will eradicate all other forms of religious belief and believers, including moderate Muslims. In these cases, the primary means is more conventional guerrilla warfare and insurgencies, such as those in southern Russia (Chechnya), Central Asia, the Indian subcontinent, Indonesia, and the Philippines. A recent statement attributed to Osama Bin Laden called for the targeting of Jordan, Morocco, Nigeria, Pakistan, Saudi Arabia, and Yemen for "liberation" (12 February 2003, translation by BBC, http://news.bbc.co.uk/1/world/middle_east/2751019.stm). The desired result has to date been achieved in only one nation, Afghanistan, with horrific results for its population, particularly women and children.

Radical Islam fundamentally is a religious world view that seeks to return to a perceived past religious paradise that includes exclusive Islamic sway over specific land masses. It is not just terrorism masquerading under a religious banner.

Reexamining International Standards
Since the terrorist attacks of 11 September 2001, many governments have begun to reexamine how international guarantees of religious freedom are applied to religious groups that openly seek the overthrow of "enemy" states and the elimination of adherents of opposing religious views. This article looks in detail at new laws in Kazakhstan and Russia that address these issues. It is important to keep in mind that the United States, Great Britain, France, Germany, Italy, Canada, Russia, and many other countries have enacted new laws designed to prevent further terrorist acts. In the U.S., bans have been lifted on domestic intelligence operations. The FBI is now permitted to infiltrate and monitor religious groups and religious charities. Assets of religiously motivated charities have been seized and donors who are not U.S. citizens have been threatened with jail and deportation. Borders are more zealously guarded and persons of particular religious and ethnic backgrounds are more closely screened. Non-citizens are subjected to preventive detention, special monitoring, intrusive testing (DNA), and of course, reduced access to visas. Within the U.S., aliens and citizens of particular ethnic and religious backgrounds face monitoring of their communications.

Restrictions on such expressions of religious belief are supported by international human rights and religious freedom standards under the "public emergency" and "public safety" exceptions. At the same time, these new laws put the future of international religious freedom and the campaign to support it in the United States at a serious crossroad. It is critical to ensure that new rules and regulations are not so broadly applied as to destroy the basic rights of newer, nonviolent religions and that they do not go beyond restrictions permissible under international human rights accords and the constitutional restraints of the applicable nation, particularly of the United States.

Three premises can inform our reflections on radical Islam and the protection of freedom of conscience. First, many religious beliefs provoke fear and anxiety in practitioners of other faiths or in the minds of atheists and agnostics. Therefore, a line must be drawn carefully between 1) religious beliefs that openly seek to overthrow democratically elected governments and to harm religious opponents and 2) religious beliefs that enrage merely because they are different from those of the majority, or a perceived historic majority. Here a distinction must be made between beliefs that truly threaten the lives and well being of others and those that threaten simply because they provide a different religious world view.

Second, advocates of religious freedom and democracy must recognize that in order to preserve democracy and the rule of law, limitations upon threatening beliefs are necessary. Espousing the view that all religious ideas are equivalent or that even violent and threatening religious beliefs must be tolerated actually imperils religious freedom and the maintenance of democratic forms of government that sustain it. Christians are called to resist evil, not to submit to it.

Third, in a world of instant communication and transnational activity, traditional barriers of national boundaries, language, time, and distance no longer impede the spread of new religious ideas. Instead, international air travel, telephone, fax, E-mail, mass media, the Internet, and population migration ensure that new ideas will not be kept out even if activities of foreign practitioners and organizations can be restricted. It is thus unrealistic to think that new ideas can be eliminated. Instead, they must be dealt with under a system of laws that pays attention both to legitimate expressions of faith and to the risks to national well-being posed by terrorist groups.

United Nations Agreements on Religious Tolerance and Freedom
It was only after the calamities of the Second World War and the advent of the United Nations that nations began to accept the concept that tolerance and mutual coexistence must become universal standards. Let us briefly review two key documents.

The most significant international human rights document is the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly in 1966 and amended in 1976. Its importance derives from its being a covenant (or contract), not a declaration, and has been signed by most of the states at issue. Article 4 states:

In time of public emergency which threatens the life of the nation States Parties to the present Covenant may take measures derogating from [setting aside] their obligations under the present Covenant provided that such measures do not involve discrimination solely on the ground of race, color, sex, language, religion, or social origin.

And even in times of public emergency, Article 18 upholds "the right ... to have or adopt a religion or belief ... individually or in community with others, and to manifest it in worship, observance, practice and teaching," whether in public or in private, and the right not to be coerced to reject or adopt a religious belief.

A second international protection for freedom of conscience is the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, passed by the United Nations General Assembly, 25 November 1981. It provides a ringing proclamation of the importance of "freedom of thought, conscience, religion, and belief." Nonetheless, Article 1.3 states: "Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others."

Thus, in times of public emergency, signatory nations may derogate from [set aside] their responsibilities under the Covenant related to, among others, rights to freedom of expression, rights of assembly, and freedom of association, and even freedom of conscience. However, they may not discriminate solely on the basis of religion or ban possession or expression of faith altogether even in times of emergencies, unless this is necessary to protect public safety, order, health, morals, or fundamental rights and freedoms of others. Thus, the terms of the Covenant and the Declaration do not allow governments to ban stupid ideas, ideas that are disagreeable to existing religious structures, and ideas that promote religious beliefs not traditional to a nation or a group within a nation. In the contemplation of international standards, the latter type of disagreements are to be debated in the public square. Part of the inherent dignity of people is their right to decide for themselves what and whether to believe.

Applying United Nations Standards to Radical Islam and to New Central Asian and Russian Laws
Taking into account the basic tenets of radical Islam, it would appear that its distinctives of incitement to war, violence, religious hatred, the killing of non-combatants, the overthrow of governments, and the formation of armed military or terrorist units are clearly subject to limitations by the Covenant and are indeed ordered to be prohibited by law in signatory nations.

In light of the creation of states of public emergency in the many nations adversely affected by the activities of radical Islam, it also appears that restraints on freedom of expression, including the creation of religious literature, speeches, Web sites, assembly, and association may be restricted as long as they do not discriminate solely on the basis of religion. By this, the drafters presumably mean that an entire faith cannot be banned but that the law must specify a type of activity. With these standards in mind, let us examine new laws in Kazakhstan and Russia.

Kazakhstan
On 31 January 2002, over the objections of many religious groups, the Kazakh legislature, in secret session, adopted a new law "On Freedom of Conscience and Religious Organization" as part of a package of urgent counterterrorism legislation. Among other provisions, the law requires at least 50 followers to register a congregation and unregistered congregations are forbidden to rent property. This provision is of concern to the Russian Orthodox Church, among others, since it has many fledgling congregations in small towns. Significantly, Muslims are singled out for special regulation. Approval of registration of groups not affiliated with the Spiritual Directorate of the Muslims of Kazakhstan requires the endorsement of the Spiritual Directorate. The law also bans activities of all unregistered religious groups and requires the registration of all missionaries (already required under a presidential decree). Other controversial provisions are that local congregations are to choose their own leaders, a practice at variance with traditions of many religious organizations, including the Russian Orthodox. Article 7 contains a provision that the activities of "foreign" religious organizations in the republic should take place through religious centers in the republic of which there should be one for each faith. Since the Russian Orthodox Church would be considered "foreign" in Kazakhstan, this would mean that it might not be free to appoint its own church leaders in Kazakhstan. For foreign religious groups with more than one "competing" set of missionaries in the republic, it would mean that only one could be registered. This would put severe limitations, for example, on various Protestant, Jewish, and Muslim groups.

On 11 April 2002 the Kazakh Constitutional Council ruled that it is a violation of the Kazakh Constitution to restrict free propagation of religious beliefs and to require prior approval of the Spiritual Directorate in order for Muslim organizations to register or set up houses of worship. President Nursultan Nazarbayev decided not to appeal the decision, and thus, the law is inactive for now. Nonetheless, there have been numerous reports that local authorities are acting as if the law is in effect, shutting down unregistered congregations, refusing to allow the rental of worship space, etc.

Russia
Article 14 of the 1997 Russian Federation Law, "On Freedom of Conscience and Religious Organizations," contains a series of prohibitions on activities of religious organizations. Some appeared rather irrational when the law was enacted, but today appear very sensible, such as prohibitions on the formation of military units. But the new law dealing with propaganda of religious extremism passed in 2002 goes beyond this. It has as its stated goal "recognition of the inadmissibility of dissemination of ideas of religious extremism in any form." It prohibits calling for or acting in ways that undermine social order or the security of the state; changing the secular character of the state or trying to impose norms of religious law instead of norms of current legislation; creating armed units; inciting social, racial, national, or religious dissension or intolerance or hatred; allowing inequality or discrimination of citizens due to race, nationality, religion, or sex; forcing families to disintegrate; violating the rights of the family and its members; infringing upon the rights and freedoms of citizens; and inflicting damage on the health or morality of citizens, including by use of stimulants, narcotic or psychoactive substances, and hypnosis.

The law also disallows depraved or disorderly actions, "knowingly providing false information with the aim of attracting new members to the given organization, or restraining a person who wishes to leave the organization," and "hindering the lawful activity of state organs, persons in authority, or state-recognized political, social, religious, or other organizations or calls for [their] unlawful liquidation." These activities are then characterized as religious extremism if they stem from religious motivation or employ religious slogans.

A Critique of the Laws
Based upon the above cases, certain provisions appear clearly acceptable, while others continue to be problematic. For example, the Kazakh law appears to overreach by making one religious organization, the Spiritual Directorate, a quasi-governmental arm of the state empowered to eliminate all rival Muslim religious groups by its refusal to authorize their registration or construction of worship centers. Language that creates a special governmental commission that receives expert advice in analyzing new branches of Islam in light of their propensity to threaten others or the state would be preferable. There are many branches of Islam and not all are bent on the destruction of enemies. The same type of provision could also be used to restrict Christians of a given confession to a single hierarchy or theological position. As examples, the Russian Orthodox Church Abroad and Old Believers would not be able to form congregations separate from those of the Moscow Patriarchate and all Baptist churches would have to register as part of one religious center. Also, arbitrarily requiring registration of all religious organizations and increasing the size of needed founders to 50 appears designed more to eliminate smaller religious groups than to achieve any legitimate public security goal.

The language in the new Russian law in many respects appears totally consistent with the Covenant and the Declaration. However, certain points stand out as questionable, such as knowingly providing false information to prospective converts. The fact that information may be false cannot alone be enough to ban or outlaw an organization, particularly since most religious beliefs are not objectively verifiable, but are questions of faith.

Lauren Homer is an attorney at law and founding president of Law and Liberty Trust, St. Louis, MO.


Lauren B. Homer, "International Guarantees of Liberty and the Slippery Slope of Restrictions on Radical Islam in Kazakhstan and Russia," East-West Church & Ministry Report 11 (Winter 2003), 3-5.

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2003 East-West Church and Ministry Report
ISSN 1069-5664



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