Religion, Human Rights and International Law: A Critical Examination of Islamic
State Practices Edited by Javaid Rehman, Susan Breau
(Studies in Religion, Secular Beliefs and Human Rights: Martinus Nijhoff
Excerpt: The first substantive area of analysis in this study is the relationship between religion, human rights and international law and the problems arising from a universally recognised right of freedom of religion. Kevin Boyle provides an excellent beginning to the discussion by an introduction to the international legal background on the freedom of religion.' His chapter fulfils the promise to serve as a reference point for the discussion of practice on freedom of religion elsewhere in the volume, specifically Islamic state practices. The initial problem with the content of freedom of religion is that of the historical and political context in which these human rights standards were negotiated. Whilst originally established during the cold-war period, they now operate in the wholly different environment of the opening decade of the twenty-first Century. Notwithstanding the different historical roots of the standards, Boyle argues that it is imperative that the universal standards on human rights, sustained despite the cold-war are not jettisoned in the crisis generated by the 'global war on terror: International law signifies the commitment of all states to defend freedom of religion as the right of the individual to hold and to practice a faith. The critical point that Boyle makes in his chapter is that human rights law, as a part of the corpus of international law does not place itself at some higher level above religion or non-religious beliefs. Rather, he argues that the purpose of the right to freedom of religion is to accommodate the plurality of such beliefs in the world while drawing its inspiration from the principles of justice and ethics shared by all religions and humanist beliefs. To advance religious freedom and to end religious persecution in this first decade of the twenty-first century, an understanding of that freedom that is inclusive of all religions is urgently needed. The international norms of freedom of conscience, freedom of thought and freedom of religion will remain lifeless until they are invoked as a framework for much needed sustained dialogue and action by the world's religions.
A major struggle within international human rights law is to reconcile the tensions emanating from claims made in the name of religion with assertions of equality rights for women. In examining this controversial subject, Christine Chinkin, argues that claims for women's equality (including women's equal right to freedom of religion) and empowerment are set against the requirements of religion." Chinkin notes that the human rights framework does not set out any hierarchy nor any mechanism for resolution of conflicting claims, leaving it open for protagonists and decision-makers to determine their own priorities. Chinkin argues that ensuring women's compliance with what are claimed to be religious demands are often placed at the core of a community's identity as part of ensuring social coherence, especially if the community is under stress, for example through conflict, occupation, or what is perceived as external attack on its values. However, it is important to address the argument that women's equality may be subordinate to the blend of these religious, cultural and political demands. Chinkin uses Pakistan as an example of how there must be an attempt to reconcile these competing forces. She gives examples of how civil society can assist in the struggle for women's equality without abandoning religious or cultural values and how the human rights enforcement mechanisms can engage in constructive dialogue with States on their religious practices. She concludes that 'it is crucial not to accept extremist positions from any perspective but rather attempts must be made to work with women within their own communities to promote their equality within the framework of their own religious values:
In part II of the study, the subject of commonalities and similarities between International law and as-Siyar (Islamic International Law) is further explored by Shaheen Sardar Ali. Ali takes the position that not-withstanding the parallel normative origins, and ideological differences of the two systems, there are significant points of concurrence between the two regulatory frameworks." Ali pursues her argument by collating a remarkable array of commonalities in the developmental and contem¬porary processes of as-Siyar and modern International Law. She argues that in the field of human rights law, the two systems have portrayed and continue to reflect tensions over slavery and women's rights and minority rights. Despite an avowed allegiance to an 'international, extra-territorial and universal' tradition, both as-Siyar and modern international law have deployed expansionist and exploitative strategies. Hegemonic and ideological expansionism, a historic trade-mark of as-Siyar, is visible in the contemporary approaches – adopted by United States foreign policy; `democracy' and 'human rights' are concepts which have now replaced the pre-modern as-Siyar notion of Jihad, whereby the rights of religious communities are being undermined." The debate over the similarities or differentiation between International law and Islamic legal norms leads to a more fundamental question: Should religious texts or customs or traditions be considered a source [or even a method from which to extract law] of international law alongside treaties, customary international law and general principles? This question is examined by Ilias Bantekas in his chapter, entitled Religion as a Source of International Law."
The argument leads to one of the major controversies within human rights law: the debate relates to the accommodation of cultural diversity while at the same time ensuring universal human rights of equality and non-discrimination. Susan Breau, in her chapter, argues that there is a false dichotomy between human rights and cultural relativism.' This topic is particularly relevant in the debate between Islam and human rights. Het thesis is that the Universal Declaration of Human Rights can be applicable to all human beings as human rights and culture can actually complement and strengthen each other. Cultural relativism can stand for the principle that we should not judge the behaviour of others using the standards of out own culture, and that each culture should be analyzed on its own terms In fact the two concepts can be harmonized as human rights not only encompass respect for the individual but an understanding of the societ) in which that individual lives. This has been argued to be the cultural pluralist position as opposed to the relativist stance.
A second important theme in this study is fundamental values underpinning human rights law particularly the new ideas of constitutionalism and the linkage these form with religions. One way through the controversy between religion and rights is to view the fundamental values that underpir both. Ben Chigara in his chapter discusses the issue of the inherent dignity of human beings in human rights philosophy." The institutionalization o international human rights starting immediately after the second world war has revolutionized perceptions about life by privileging above all else the sanctity of the dignity that is inherent in all human beings. This process has committed States to practices that recognize, respect and promote the human dignity irrevocably possessed by every human being. This idea o the sanctity of human dignity is also a core belief in the world's religions Indeed, Chigara argues that a state's primary purpose is to secure and serve individuals in order for men and women freely to actualize their life potential which surely includes religious or non-religious beliefs and practices.' Fiona de Londras also supports this idea that human dignity, the bedrock of human rights, is the secularised version of sanctity."
One of the primary ways in which the importance of human rights is emphasised is in the contested term of jus cogens which signifies peremptory norms of international law. Fiona de Londras approaches this controversial issue of jus cogens in terms of its religiosity. In the current security versus rights debate the notion of rights that are jus cogens has become even more important. De Londras asserts that jus cogens is essentially religious embodying, as it does, the basic protections that represent a consensus between different religions about the basics of human dignity. Jus cogens rights attract a higher level of enforceability because they reside within the moral consensus and therefore have the capacity to be accepted by all as a force for good. On this understanding of jus cogens the concept does have religion. Indeed de Londras argues that all human rights are religious in this way – they are designed to ensure that we can all attain a basic level of personal security and participation required for the chance to prosper and to grow. Her chapter supports the position taken throughout this col¬lection that both religion and rights matter.
Rebecca Wallace examines the specific content of the right to religious expression within the context of refugee claims and the 1951 Refugee Convention.' She argues that religion as a ground for refugee status embraces both elements of the right, belief and participation: affording protection to those who are at risk because they are known adherents of a particular religion as well as to those who are at risk for living by their convictions. In her extensive examination of the case law she reveals that freedom of religion, expression and conscience is a basic-core right which is recognised in international law and which informs the 1951 Refugee Convention.
The role of Islam and its human rights credentials (while forming a particularly contentious debate) receive a comprehensive analysis in the present volume. At the same time it has to be recognised that difficulties and tensions emanate through the engagement of all religious norms with human rights values. All Theistic, non-theistic and atheistic philosophies can be tainted with insensitivity towards human rights values. As the present study illustrates, hostility, discrimination and hatred can be derived from such deities as the caste-based Hinduism. Parallels can be drawn between discrimination based on religion and the caste-based discrimination. David Keane's paper in the present volume eloquently describes that forms of religious discrimination can be deployed alongside racial and descent based discrimination." In highlighting the social and economic inequities through the perpetuation of caste-based discrimination, Keane makes the pertinent point that 'caste system uniquely, has religious support in the sacred texts of the Hindus, resulting in large scale caste-based discrimination causing widespread poverty and degradation'.
The Islamic human rights paradigm and the practices that emerge from Islamic States paint a diverse and at times bewildering and contradictory picture. These contradictions are highlighted by the myriad interpretations given to concepts of sovereignty, democracy and the rule of law. As Guichon argues in her chapter, under the classical interpretations of the Sharia, the Sovereignty as well as the authorisation of rights to individuals remains a prerogative of Allah.' Under this formula 'Islamic human rights are envisaged through their relation to God, to what God guarantees His followers depending on their actions. Human rights will be guaranteed to an individual only if he is capable and ready to lead a good Muslim life: Such an approach potentially signals a considerable point of departure between the Sharia and the universal human rights model. The contentious nature of Sharia's interpretation of individual rights and its arguable incompat¬ibilities with modern paradigms of human rights law nevertheless have to take into account the historic inequities within which Islamic societies have operated. In the imperialistic and colonial struggles, Islamic communities found themselves overpowered and dominated by others, who were more strategic, manipulative and powerful. Not only were indigenous Islamic laws disturbed or displaced by the misfortunes of colonialism, the Sharia as a legal system was not allowed a natural growth. The post-colonial order that emerged in the aftermath of the second world war, oblivious to the needs and demands of the Islamic world was fashioned, in the vision of the imperialist political elite. New States – many of them with Muslim majority populations – were carved-out in a design hitherto established by the European powers, containing a recipe for future ethnic and racial conflicts and human rights violations." In the urgency to build nation-States and to repress ethnic, cultural and religious identities, Islam and the Sharia were frequently used to repress pluralism and the rule of law.'
Amidst the divisions of the cold war and the antithetical visions of the west and Communist Europe, Muslim States had limited influence in asserting a distinct Islamic human rights perspective on international affairs. The early post second world war international human rights instruments therefore were not sensitive towards the specific needs and concerns of the Islamic world. Nor was the relevance of Islam and its application in the socio-legal environment of Muslim States provided a due acknowledgement within the framework of human rights law. The backlash against the dominant western models of human rights provides a partial explanation for the resurgence of Islam and the Sharia in many States. Islamic States and the communities living within those States assert a form of social ordering based upon the precepts of the Sharia. Such Sharia-ordained social order-ing, is possible indeed desirable within Muslim States, if taking Baderin's point, the enhancement of human welfare is regarded as the lowest common denominator of international human rights law and Islamic law." Mashood Baderin advances this position of harmony and rapprochement through an examination of the sources of the Sharia as well as modern human rights law. Through an examination of the significant human rights of freedom of opinion and expression, the right to public and political participation, the right to a fair trial and due process of law, women's rights and the right to education and to work, Baderin builds the argument for the possibility of harmonising Islam and human rights as parallel forms of social ordering in Muslim States.
Whilst, in principle, highly attractive, the practice of harmonisation of the Sharia with human rights law has proved problematic in modern Islamic State practices. One problematic area relates to the rights of women in Islamic States. As Siobhán Mullally exemplifies in her chapter, measures taken in the name of Islam and the application of Sharia have impeded gender equality and denied women's rights. The case of Pakistan, as considered by Siobhán Mullally provides an unfortunate picture of the application of the Sharia.' The Islamisation process within Pakistan led to the adoption of draconian and discriminatory legislation such as the Hudood Ordinances. The Hudood Ordinances, including the Zina Ordinances were passed by General Zia-ul-Haq during his campaign to Islamise Pakistan's Criminal Justice System. Mullally presents a comprehensive examination of the tensions persisting within Pakistan's higher courts when dealing with women's constitutional rights. Her concluding observations present a realistic statement of existing difficulties for securing women's human rights. She notes: [t]he increasing politicised nature of Islam in Pakistan has subordinated women's human rights to political expediency and to cultural claims. The "othering" of feminist discourse, combined with increasing polar¬ization between "Islam" and "the West", creates significant obstacles for both global and local feminist struggles. Pakistan's geo-political positioning within the "war on terror" serves only to reinforce such obstacles. Notwithstanding the demise of the dictatorial regime of General Zia and Pakistan's 1996 accession to the Convention on the Elimination of All Forms of Discrimination against Women (1979), the Hudood laws continue to violate women's rights in Pakistan. Rebecca Wallace in her chapter exam¬ines practices emergent from Islamic countries such as Iran and Pakistan where repressive laws and their enforcement has forced religious minorities to escape persecution and to make asylum claims in the United Kingdom. Ordinance XX and the Blasphemy laws of Pakistan – passed by the military government of General Zia-ul-Haq and condemned by international bodies including the (former) Sub-Commission on the Prevention of Discrimina¬tion and Protection of Minorities – have provided a steady source of asylum applications from Ahmadi communities of Pakistan.
Martin Lau, in his chapter, considers the role of the judiciary in Pakistan and the creation of a judicial machinery to enforce Islam or to strike-down laws on the basis of their repugnancy to the Sharia. He notes that the creation of the Federal Shariat Court as a Court of Appeal against convictions under the Hudood Laws as well as the establishment of a judicial body to determine the compatibility of laws with provisions of Sharia was an unprecedented measure. As Lau examines, the Federal Shariat Court has dealt with fundamental rights in Islam, such as the right to equality and the right to fair hearing. The jurisprudence of the Court remains highly disappointing in so far as gender equality or protection of the rights of religious minorities is concerned.
Javaid Rehman's chapter targets another aspect of Islamistation process in
Pakistan – the politicisation of Islam and the involvement of the Sharia in the
nation-building project." Rehman explores the consequences of estab-lishing a
State whose raison d’être was to protect the Muslim population of the Indian
Sub-Continent. However, partition of India along religious lines not only
resulted in the creation of an anomalous Pakistan, but the emphasis on
'nation-building' meant a failure to respect ethnic, culture and linguistic
identities. Large-scale discriminatory and exclusionary tacit on the part of the
military and the dominant West-Pakistan elite result in alienation, civil
disobedience and finally the secession of East Pakistan in December 1971. The
truncated Pakistan continues to reflect an unfortunate picture; in an effort
towards nation-building through forced assimilation the values and aspirations
of religious and ethnic communities are being undermined.
One highly unfortunate consequence of 11 September 2001 has been the growth of Islamophobia: The terrorist attacks in the United States wet condemned by the whole of the international community, including Musilm liras living in every part of the globe. Despite that, there has been a back lash with Muslim communities being increasingly targeted, harassed an intimidated, In the aftermath of 9/11, the concern for the physical safet of Muslim communities became so substantial that in its fifty-ninth session the UN Human Rights Commission requested the Special Rapporteur of the Contemporary Forms of Racism, Racial Discrimination, Xenophobi and Related Intolerance to examine the situation confronting the Muslim and Arab peoples all over the world regarding physical assaults and other forms of attacks against their places of worship, cultural places, business€ and properties.' The consequences of Islamophobia' for Muslim minorities in the United States and the United Kingdom are particularly deplorable.' Muslims in the United Kingdom continue to face social exclusion an intimidation with the State institutions unable or unwilling to redress the historic injustices faced by the beleaguered Muslim minority communities. Furthermore, since the tragedy of 7 July 2005, an increasingly vocal campaign has been launched calling for an end to the multiculturalism project in Britain. In contrast, Xanthaki argues that multiculturalism contributes to the easing of the tensions among different cultural groups in the society.' Multiculturalism recognises, she argues, the existence of multiple loyalties that form concentric circles around the individual. The protection of such loyalties, the respect of the contribution of these cultural frameworks to the evolution of the society and the interaction of these different groups allows the members of such groups to develop and prosper within the state, and hence limits the probability of tension within the state. Part of such multicultural policies also involves rectifying the historic disadvantages faced by minority groups through affirmative action policies. The application of such policies remains problematic in the context of the United Kingdom. Xanthaki makes the point that 'In Britain, Muslims are still to be considered as equal partners in the evolution of the society. Expecting minorities to accept the "British way of life", a phrase often heard by officials and the public, really translates to excluding them from taking part in the shaping of this society, excluding them from taking active part and even changing and bringing new values to the British culture:
In adopting the primary themes from Xanthaki's chapter, Javaid Rehman provides a critical examination of the position of Muslim minorities within the United Kingdom.' Muslim communities have substantial claims of social exclusion, discrimination, and denials of a right to identity; with growing anguish towards the United Kingdom's foreign policy and the State's increasingly draconian legislation overtly targeting Muslims, the prognosis for the future is bleak. The gloom and criticisms of the stance and positioning of Muslim minorities appears to have obscured a proper consideration of the historic failings of the British State. In an increasingly strained and tense political environment, Rehman's chapter analyses the issues confronted by contemporary British Muslim communities. His chapter aims to map out appropriate responses to the current threat from Islamic extremism. The chapter also analyses the concerns encountered by the Muslim minorities both historically as well as post 7 July 2005.
The growth of Islampohobia' has not been confined to regions of the United Kingdom with visible and noticeable Asian minority communities. Discrimination and harassment is also becoming evident in Northern Ireland, a province of the United Kingdom with a minimal Muslim presence. In the backdrop of the troubled political and constitutional history of Northern Ireland, the issues of identities and loyalties remain contentious for the Muslim minorities. The traditional sectarian divide prevalent within the social fabric, as argued by Montgomery means, that 'Britishness and Irishness in [Northern Ireland] are not the same as Britishness in the rest of the UK or Irishness in the Republic of Ireland. They are oppositional identities that have been forged in relation to one-another so that notions of Britishness and Irishness in NI have remained locked into the disputed status of the province. They are ethnic identities that are closely bound up with religion: a British identity held primarily by Protestants, and an Irish identity held primarily by Catholics. Therefore, the fact that they are underpinned by religious affiliation makes it difficult for Muslims to identify fully with either:" Amidst the complex structures of a continuing segregated society, Montgomery examines the disadvantages and discrimination faced by Muslim minorities. The extremely limited visibility of Muslims in public life including political life and policing is an unfortunate feature, as are specific inadequacies of the State to address such concerns as the satisfactory provision of halal food, access to female doctors for Muslim women and greater provisions for prayer facilities.The failings of the State in making adequate provisions for Mosques and prayer-facilities in Northern Ireland forms a central part of the critique presented by Diver and Thompson.' In critically examining the controver¬sial subject of public worship, the authors highlight the reluctance of the western governments towards tolerating the practice of minority religious faiths. During colonial periods, colonial religions and cultural values were imposed upon indigenous tribal faiths and practices; in the contemporary post 9/11 environment 'Islamophobia' is witnessed through opposition to establishing Islamic religious and social institutions. Diver and Thompson highlight the tensions within key provisions of the Universal Declaration on Human Rights (1948) and European Convention on Human Rights (1950). It is argued that these provisions have allowed States parties to curtail public expression of faith and freedom under the 'margin of appreciation' doctrine. Diver and Thompson demonstrate with clarity that the issue of sacred space has been seized upon by domestic policy-makers to exhibit and establish prejudices against religious minorities. In the prevailing tensions as a consequence of the events of 9/11 and 7/7, there is likely to be increasing opposition to establish a secured environment for religious expression and freedoms.
Muslim Ethics: Emerging Vistas by Amyn B. Sajoo (Institute for Ismaili Studies) (Adapted from Preface) The study of Muslim ethics cannot be confined to scripture and its attendant normative regime, even as it extends to scholarly commentaries in disciplines ranging from law and philosophy to the natural sciences. The foundational importance of these elements is axiomatic, for they offer tenets, arguments and stories that can be timeless in their potency. Yet, the central role for Muslim ethics at large of the Qur’an and the body of prophetic guidance and conduct, the Sunna, is accompanied by a key principle, one that underlies the oft-repeated assertion about Islam being ‘a way of life’. It is the idea of the historical locus of the life of Muhammad, with its series of well-documented struggles to fulfil a prophetic mission in which the pursuit of ethical ideals is not an abstraction but a practical matter.
Yet, there have always been Muslims and non-Muslims who prefer to treat religious texts as bearing singular and fixed meanings, the life of the Prophet Muhammad as closed to the creative interpretation that it richly merits, and the diverse histories of Muslims as a unitary history of ‘Islam’. This perspective yields, predictably enough, an ethos that is readily identified as a body of sacred rules, some finding their way into law or fiqh, and the rest into the wider shari’a as a normative expression of Islam. Applying this ethos to the daily challenges that confront a Muslim is, then, an act of will, albeit with discernment as far as identifying the relevant principles are concerned.
It is not only those a ‘fundamentalist’ persuasion – better referred to as political Islamists – who adopt that view, in which human agency and reason are subordinated to acts of compliance. Ironically, that this ideological posture is shared by numerous commentators on ‘Islam’ who, like the Islamists, would rather not grapple with the intricacies of pluralist Muslim worlds, historical and contemporary, textual and social, orthodox and heterodox, and all the shades in between such binaries. That reductive tendency has rarely been as conspicuous as it is today, in the aftermath of the events of September 11, 2001. Vexing issues of political violence, tolerance, the nexus of individual and community, even the fresh challenges of biotechnology, are too loudly treated as if the ethical problems at hand have ready-made solutions that only need uncovering in scripture.
Among the principal burdens of this study is the claim that it is motivation that makes religious ethics in general, and Muslim ethics in particular, an exciting field of study amidst the advent of secular modernity. This is not about an exploration of how one attributes motive and responsibility to an actor in ethics (as compared with law, for example), and least of all about the psychology of motive-formation in its interface with social and private ethical action. Those are vast and indubitably relevant fields that merit attention in their own right. What I have chosen to address is addressed here is a fundamental problem in approaches to modern ethical conduct that straddles easy divides between ‘secular’ and ‘religious’ motivation, and not only among Muslims: it has to do with the question, ‘Why act ethically?’ Responding coherently to that query requires one to consider various concept! ions of the ‘good’ in settings that are private and public, socio-political and scientific, past and present. Asking whether an act is ‘inherently’ right or wrong as the primary question, and building an approach thereon in terms of secular or religious perspectives, is a blinkered approach. When wedded to an adamantly secular framework, this gives short shrift at the outset to the discourses and praxis that religious affinities bring to the ethical choices that individuals actually make.
Equally, an adamantly absolutist frame of reference, secular or religious, to whether something is inherently wrong, gives short shrift to the complexities of human motivation that attend such judgments in the real world. It reduces the interplay of reason and faith or commitment to nothing more than passive compliance within an impoverished, deux ex machina view of the world. Both frameworks exist for some, of course, but they can hardly tell the whole story.
In seeking, then, to do justice to contending and plural realities, the author has ventured in the opening section to consider an array of social settings in which Muslim conceptions of the good have developed and are today unfolding, including biomedicine and ecology. Asking how and why those conceptions are to be taken seriously is the underlying thread that connects the settings, yielding continuities and reinventions of tradition and reason. Next, the work focuses successively on three distinct yet overlapping domains - of ‘civility’, ‘humanism’ and ‘governance’ - that compel our attention in normative and empirical terms alike. For they engage such basic contemporary notions as human rights, the rule of law and civic culture in which conceptions of the good, whether as ethos or specific moral judgments, are vitally entwined. Engaging with those notions, as indeed with the history of ethics generally, also requires acknowledging the continual entwining of ‘Islamic’ perspectives with those of other traditions, confessional and secular - which is rendered all the more necessary today amid globalization and the enormous diasporic presence of Muslims across civilizations.
The author has sought to range beyond sources and contexts that usually receive attention in such studies; hence, the canvas includes references to cultural expressions like novels, the cinema and fine art in which conceptions of the ethical are embedded.
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