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Belgium's decision to ban people from wearing veils which cover the face in public spaces last week has sparked debate across Europe about individuals' freedom to wear religious symbols.
While supporters of the ban argue it will 'liberate women', critics say it violates freedom of expression, thought, conscience and religion and unfairly targets Belgium's Muslim community.
John Dalhuisen, Amnesty International's expert on European affairs condemned the ban, saying: "The Belgian move to ban full-face veils, the first in Europe, sets a dangerous precedent...The obligation to combat discrimination cannot be fulfilled by imposing a measure that is itself discriminatory."
Other European countries are now considering similar laws. France, which has the largest Muslim population in Europe, will debate a full ban on the niqab and the burqa in public spaces later this month. The draft text stipulates a €150 fine for those who breach the ban, with the possibility of a one year prison sentence.
Some Members of the European Parliament are also calling for a Europe-wide ban on the veil.
Beyond the ban
What will the ban mean in practice for women and girls who wear the veil either out of choice or because of pressure from their family or religious community?
Belgium's prohibition on the veil was ostensibly passed to promote women's equality. But the government has declared that fines will be imposed on those who infringe the ban, in effect criminalising those it purports to protect.
Imposing an outright ban shows scant regard for the potential negative consequences on the lives of women and girls wearing the veil, who could find themselves essentially under house arrest. Being unable to even walk down the street without fearing arrest, these women and girls would be barred from visiting even essential public institutions like schools, libraries, hospitals, and police stations, severely jeopardising their human rights to education, health care and security, among many others..
Thomas Hammarberg, Commissioner for Human Rights at the Council of Europe, warned recently:
“Prohibition of the burqa and the niqab would not liberate oppressed women, but might instead lead to their further alienation in European societies. A general ban on such attires would constitute an ill-advised invasion of individual privacy...
Nor has it been possible to prove that these women in general are victims of more gender repression than others. Those who have been interviewed in the media have presented a diversity of religious, political and personal arguments for their decision to dress themselves as they do. There may of course be cases where they are under undue pressure - but it is not shown that a ban would be welcomed by these women.” Read the full viewpoint here.
Furthermore, banning the veil effectively means that those who harbour ill will or discriminatory attitudes towards those who look or dress differently now have State backing for their intolerance. In short, people are being criminalised for being different.
Examples of how such a ban has been enforced elsewhere offer little reassurance. In northern Italy this month a Tunisian woman was fined on her way to a mosque for wearing the niqab, which covers the face, leaving only the eyes exposed. She was fined 500 euros under a bylaw introduced by the mayor that bans people from wearing clothing in public that could prevent the police from identifying them.
In fact, a recent article on the effect of banning girls from wearing the hijab - the Islamic headscarf - in schools in Tajikistan says that the prohibition is having the opposite effect and has led to more girls opting to wear the more concealing niqab. Read more here.
Religious symbols in schools
Schools have been the main arena for controversy for children and freedom of religion, where students wishing to wear religious symbols may be prevented from doing so in order to comply with a secular or neutral school dress code.
High profile cases of children being excluded from school for wearing religious symbols have included a Sikh girl in Wales wearing a Kari bangle and a number of Muslim girls in France wearing the veil. In Spain, the government allows schools to decide how to handle the wearing of the veil. However, the recent case of a 16-year-old Muslim girl who was expelled because of her refusal to take her headscarf off has provoked debate about the need to establish a nationwide policy, especially with regard to children.
In 2001, former UN Special Rapporteur on Freedom of Religion or Belief, Abdelfattah Amor, noted: ‘The policy of assimilating the children of minorities, thereby making them lose their identity, is a most harmful form of discrimination because it sows the seeds for the continuation of discriminatory attitudes beyond the generations practising them at any given time’
Children face additional hurdles to enjoying their right to freedom of religion or belief by virtue of their age and relative immaturity - ultimately, a child's choice of religion is restricted by parents until such a time as they can decide for themselves.
However, children's right to explore different belief systems and express their views is linked to all rights in the Convention and children must not be compelled to follow a belief system they do not adhere to. If children are restricted from exploring different belief systems or expressing opinions, including by the way they dress and the symbols they wear, how can they develop their own beliefs or respect for those of others?
What does international human rights law say about the veil?
Children's right to freedom of thought, conscience and religion is protected in article 14 of the UN Convention on the Rights of the Child and is closely connected to the right to freedom of expression enshrined in article 13 and article 12 which relates to the right of expression of views specifically about matters which affect the child, and the right to be involved in actions and decisions that impact on her or his life.
Article 9 (2) of the European Convention on Human Rights (ECHR) states that:
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
The Committee on the Rights of the Child has provided some guidance on the issue in its Concluding Observations. In its recommendations to France, for example, the Committee expressed concern that legislation prohibiting children from wearing religious symbols and clothing in public schools could run contrary to the principle of the best interests of the child and threaten to violate children's right to access education by preventing them from attending school.
The Committee recommended that France “consider alternative means, including mediation, of ensuring the secular character of public schools, while guaranteeing that individual rights are not infringed upon and that children are not excluded or marginalised from the school system and other settings as a result of such legislation. The dress code of schools may be better addressed within public schools themselves, encouraging participation of children.” The Committee also recommended that France “continue to closely monitor the situation of girls being expelled from schools as a result of the new legislation and ensure that they enjoy the right of access to education.”
The European Court of Human Rights, however, has in the past been much more supportive of laws and policies that ban people from wearing religions symbols in schools, and has dismissed applications brought by Muslim students who were expelled from universities for this reason (see Şahin v Turkey, for example).
However, in a recent case against Turkey, the Court ruled that restrictions on religious dress in public areas violated the right to freedom of thought, conscience, and religion. The Court found that Turkey had violated the rights of 127 members of a religious group called Aczimendi tarikatÿ who had been convicted in 1997 of breaking a law against wearing religious clothing in public except for religious ceremonies.
Perhaps staking out a middle ground, the UN Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir, instead recommends a case-by-case approach to determining an individual's right to wear religious symbols (UN Doc. E/CN.4/2006/5, paras. 36-60).
The Special Rapporteur's Office has also sought to develop a set of general criteria to balance competing human rights to assist States in reviewing and drafting legislation on the right to freedom of religion or belief. The Rapporteur identified some “aggravating indicators”, i.e. legislative and administrative actions which are typically incompatible with international human rights law, for example, if exceptions to the prohibition of wearing religious symbols are tailored to the country's predominant religion or belief.
The Special Rapporteur also referred to “neutral indicators” which do not by themselves contravene international human rights standards, for example, if the interference is crucial to protect the rights of women, religious minorities or vulnerable groups.
She emphasised that the fundamental objective should be to safeguard the freedom of religion of those who choose to wear or display religious symbols, and to protect people from being forced to wear or display religious symbols.