Japan’s Culpability in Failing to Deal with Deprogramming
The abuse suffered by Mitsuko Antal and others in Japan violated United
Nations principles of international law which Japan has acknowledged.
The U.N. Declaration of Human Rights in Article 18 provides for
freedom of thought, conscience and religion, while Article 19 provides for
"freedom of opinion and expression." Article 3 also provides that
"[e]veryone has the right to life, liberty and security of person." Article 7
provides for "equal protection before the law" as well as "protection
against any discrimination in violation of this Declaration and against any
incitement to such discrimination." Finally, Article 8 states:
Everyone has the right to effective remedy by the competent
national tribunals for acts violating the fundamental rights
granted him by the Constitution or by law.
These rights, as set forth in the U.N. Declaration, were recognized
by Japan in the Peace Treaty with Japan of September 8, 1951. The
preamble to that treaty includes a clause under which "Japan for its part
declares its intention . . . in all circumstances, to conform to the principles
of the Charter of the United Nations; to strive to realize the objectives of
the Universal Declaration of Human Rights. . . "
Moreover, Article 7 authoritatively states:
It must be realized that in many cases restraints upon freedom
of thought, conscience and religion -- and even denials of that
freedom -- stem not from any governmental action but from
pressures within the society in which they occur…Public
authorities have a duty to protect individuals and groups
against this kind of discrimination, as is made clear in Article
7 of the Universal Declaration of Human Rights. . . .
The involvement of parents in such violations does not excuse
governmental involvement or acquiescence in such violations of human
conscience.
Japan did ratify the United Nations Covenant on Civil and Political
Rights (1966). As an international covenant, it is legally enforceable.
Thus, Japan is accountable for any breach of this covenant.1
Article 3 of the Covenant provides that each State party to the
covenant undertakes to: ensure (a) that a person whose rights and
freedoms recognized by the covenant have an effective remedy; (b) the
person claiming a remedy to have his right determined by a competent
authority; and (c) the competent authority shall enforce such remedies
when granted.
Under Article 18(2) of the ICCP "[n]o one shall be subjected to
coercion which would impair his freedom to have or adopt a religion or
belief of his choice."
The covenant obligates State parties to "adopt such legislative or
other measures as may be necessary to give effect to the rights
recognized." Article 2 § 2. It also legislatively prohibits "[a]ny advocacy
of . . . religious hatred that constitutes incitement to discrimination,
hostility or violence. . . ." Thus, state parties, including Japan, are
obligated to establish an environment friendly to persons of all religious
beliefs.
The United Nations Human Rights Committee2 General Comment
1
Admittedly, the forced deprogramming of adherents to disfavored religions in Japan is
not as egregious as the official action of local Chinese authorities who use the administrative
process to punish members of unregistered religious groups to sentence citizens to up to 3
years in prison-like facilities called reeducation centers or sending hundreds of Falun Gong
practitioners for confinement in psychiatric institutions where forced to take medications or
undergo shock treatment against their will. However, on serious reflection, it must be
admitted that the difference is only one of degree. See 2001 Annual Report on International
Religious Freedom Report at 206.
2
The United Nations Human Rights Committee is an autonomous treaty based body made
up of human rights experts elected by state parties. Its responsibility is to monitor state
parties' applications of the ICCPR and operational protocols.
No. 22 (48) (Article 18) states in paragraph 2 that "Article 18 [of the
ICCPR] is not limited in its application to traditional characteristics or
practices analogous to those of traditional religions."
The Committee therefore views with concern any tendency to
discriminate against any religion or belief for any reason,
including the fact that they are newly established or represent
religious minorities that may be subject to hostility by a
predominant religious community.
The Committee in paragraph 3 states that Article 18 distinguishes
between "the freedom of thought, conscience, religion or belief from
freedom to manifest religion or belief. It does not permit any limitations
whatsoever on the freedom of thought and conscience or on the freedom
to have or adopt a religion or belief of one's own choice. These freedoms
are protected unconditionally, as is the right of everyone to hold opinions
without interference in article 19(1)."
The Committee in paragraph 3 recognized the fact that the
unconditional freedom of conscience and the right to adopt a religion or
belief of one's own choice, in accordance with articles 18(2) and 17
included within the right of privacy, and "no one can be compelled to
reveal his thoughts or adherents to a religion or belief."
Of importance in the context of the invasion of religious human
rights by faith-breaking attempts of others is the Committee's statement in
paragraph 5 of its General Comment No. 22(48):
The Committee observes that the freedom to "have or to
adopt" a religion or belief necessarily entails the freedom to
choose a religion or belief, including inter alia, the right to
replace one's current religion or belief with another or to
adopt atheistic views, as well as the right to retain one's
religion or belief. Article 18(2) bars coercion that would
impair the right to have or adopt a religion or belief,
including the use of threat of physical force or penal
sanctions to compel believers or non-believers to adhere to
their religious beliefs and congregations, to recant their
religion or belief or to convert. Policies and practices having
the same intention or effect, such as for example those
restricting access to education, medical care, employment or
the rights guaranteed by Article 25 and other provisions of
the Covenant are similarly inconsistent with Article 18(2).
The same protection is enjoyed by holders of all beliefs of a
non-religious nature.
It is thus clear from the Committee's General Comment that Article
18(2) of the ICCPR bars the use of physical force and other forms of
coercion against individuals in an attempt to make those individuals
recant their religious beliefs. And it is no excuse that the perpetrator of
the coercive action does not recognize the belief as religious since the
protection is to be equally available to one who holds a non-religious
belief. The protection encompasses freedom of thought on "all matters."3
The fact that a parent or a minister of another faith has a different
religious perspective does not justify the use of coercion to change the
religious beliefs of another. It has been stated:
The personal convictions of an individual or a religious group
that their beliefs are true or superior can never justify
discrimination towards others because they hold or profess
different beliefs which are judged wrong or inferior.4
In 1981 the Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief was
adopted. If there were any question that non-governmental actors may
not be held accountable for violating U.N. religious human rights
3
See D. Little, Studying "Religious Human Rights": Methodological Foundations at 7 n.11
(paper submitted to the International Conference on "Religious Human Rights in the World
Today: Legal and Religious Perspectives," Atlanta, Oct. 6-4 (1994).
4
K. C. Boyle, Report on "Freedom of Conscience in International Law," Freedom of
Conscience Proceedings 37, 50 (Strasbourg)
standards, that issue was put to rest in the 1981 Declaration. Article 2(1)
not only prohibits discrimination by the State but also by any "institution,
group of persons or person on the grounds of religion or belief." And
Article 1(2) states that "[n]o one shall be subject to coercion which would
impair his freedom to have a religion or belief of his choice." While
Article 4(1) of the Declaration insists that "[a]ll States shall take effective
measures to prevent or eliminate discrimination on the grounds of religion
or belief of human rights and fundamental freedoms in all fields of civil,
economic, political, social and cultural life." Likewise, Article 4(2)
instructs "[a]ll States . . . to take appropriate measures to combat
intolerance on the grounds of religion or other beliefs in this matter."
It should be observed that "[w]hen Articles 2(1), 4, and 7 are read
together, it is clear that national laws are to protect all persons against
religious discrimination practiced by all other persons. This represents a
bold attempt to require countries to outlaw private discrimination as well
as discrimination at the hands of a body representing the state itself."5
The 1981 Declaration, although not a convention, still has legal
effect because of the content of the language as well as its evolution since
its adoption. The mandatory language found particularly in Articles 4 and
7 demonstrates that the General Assembly intended the 1981 Declaration
to be normative and not strictly exhorting.6
CONCLUSION
As stated by Mr. Federico Major, Director General of UNESCO, in
addressing the OSCE International Seminar on Tolerance in May of 1995:
In practice, fighting intolerance requires both state action and
individual responsibility. Governments must adhere to the
international standards and instruments of human rights, must
5
Bahiyyih G. Tahzib, Freedom of Religion or Belief: Ensuring Effective International
Legal Protection 172 (The Hague: Martinus Nijhoff 1995).
6
Id. at 186-87.
ban and punish hate crimes and discrimination against
minorities and all vulnerable groups, must ensure equal
access to justice and equal opportunity for all.7
It has been suggested that "States should . . . review whether their
court rulings and administrative practices conform with existing standards
on freedom of religion and belief."8 It is long over due for the Japanese
judiciary to examine its rulings against the yardsticks of international
human rights requirements. And the government bears a responsibility
also to ensure that no person is subjected to the abuses of forcible
deprogrammings without an effective legal remedy. We must wait no
longer for Japan and other States to remedy such abuses.
Because forcible deprogrammings have been permitted for way too
long, international bodies must now take additional action to insist that the
right of conscience guaranteed by international standards is fully
protected against such reprehensible violations of human rights. The
international human rights community and officials must condemn such
conduct without delay. Governments committed to standards broken by
such violations must see to it that not one more citizen is subjected to a
forcible deprogramming.
7
Message from the Director General of UNESCO, Mr. Frederico Major, International
Seminar on Tolerance, OSCE/ODIHR, Bucharest, 23-26, May, 1995, Proceedings of the
Seminar at 19.
8
Tahzib, Freedom of Religion or Belief: Ensuring Effective International Legal Practices,
at 54, citing Vidal D'Almeida Ribeiro, Implementation of the Declaration on the Elimination
of All Forms of Intolerance and of Discrimination Based on Religion or Belief, U.N. Doc.
E/CN4/1988/45 (1988) (para. 70).