religious services have been considered by international bodies as violations of the freedom of religion.511 249. International standards further dictate that states should adopt positive measures to facilitate the practice of religion in prisons. They should, for instance, appoint a qualified religious representative when a sufficient number of persons of that religion are detained together, as is the case in Guantánamo. Detainees’ access to this representative should not be hindered if they wish to meet with him or her.512 250. Moreover, OSCE commitments firmly reject identification of terrorism with any nationality or religion and reaffirm that action against terrorism is not aimed against any religion, nation or people.513 251. The right to freedom of religion or belief is also protected under international humanitarian law. It is a norm of customary international humanitarian law enshrined in Common Article 3,514 Article 75(1) of API, as well as other specific provisions of the Third and Fourth Geneva Conventions.515 The right to freedom of religion or belief therefore applies to all Guantánamo detainees, including those apprehended in the context of any armed conflict, irrespective of its nature. b. Domestic Standards 252. Freedom of religion or belief is enshrined in the First Amendment to the US Constitution and the Religious Freedom Restoration Act (RFRA). These legal provisions have been interpreted as prohibiting religious discrimination516 and disproportionate restrictions on individuals’ ability to practise their religion.517 253. US courts have not definitively ruled on the applicability of the First Amendment’s freeexercise clause to Guantánamo detainees. The Court of Appeals for the District of Columbia Circuit has, however, held that Guantánamo detainees are not protected 511 UN HRC, Clement Boodoo v. Trinidad and Tobago, Communication No. 721/1996, 15 April 2002, para. 6.6, <http://www.un.org/Docs/journal/asp/ws.asp?m=CCPR/C/74/D/721/1996>. 512 “Standard Minimum Rules for the Treatment of Prisoners”, op. cit., note 280, Rule 41. See, also, UN Special Rapporteur on freedom of religion or belief, Interim report to the General Assembly, A/64/159, op. cit., note 509, para. 20; UN Special Rapporteur on freedom of religion or belief, Interim report to the General Assembly, A/60/399, op. cit., note 510, paras. 80-82. 513 OSCE, “OSCE Charter on Preventing and Combating Terrorism”, op. cit., note 4, para. 2. 514 Common Article 3 refers to the prohibition of discrimination based on religious grounds. It also stipulates that “outrages upon personal dignity” are prohibited conduct. It should be noted that the Elements of Crimes of the ICC specify that “outrages upon personal dignity” take into account aspects of the cultural background of the victim in order to include, as a war crime, forcing persons to act against their religious beliefs. See, for example, “Customary International Humanitarian Law, Rule 104: Respect for Convictions and Religious Practices”, ICRC website, <http://www.icrc.org/customaryihl/eng/docs/v1_rul_rule104#Fn_48_22>. 515 The provisions in question include, inter alia: Third Geneva Convention, Arts. 34-35; Fourth Geneva Convention, Arts. 76, 86, 93. International humanitarian law guarantees detainees’ right to practice their religion and to have access to a qualified representative of their religion, and forbids discrimination based on religious grounds, among others. See, also, APII, Arts. 4-5. 516 United States Supreme Court, Sherbert v. Verner, Case No. 526, 17 June 1963, <http://www.law.cornell.edu/supremecourt/text/374/398#writing-USSC_CR_0374_0398_ZO>; United States Supreme Court, Torcaso v. Watkins, Case No. 373, 19 June 1961, <https://supreme.justia.com/cases/federal/us/367/488/case.html>. 517 Authorities should not “substantially burden a person’s exercise of religion” without a compelling justification and unless it is the least restrictive means to further this compelling interest. RFRA, 16 November 1993, § 3, <http://www.gpo.gov/fdsys/pkg/BILLS-103hr1308enr/pdf/BILLS-103hr1308enr.pdf>. 109