Opinion of Brain whitaker

Human rights in the Arab countries

Introduction

International agreements such as UN conventions involving human rights present Arab states (and the Islamic countries more generally) with a dilemma. On one hand they are reluctant to accept the principle of universality, arguing for exceptions to be made on cultural or religious grounds, while on the other they feel a need to demonstrate that Islam respects human rights by signing up to UN conventions [see table]. 

Becoming a party to the various human rights conventions gives respectability without necessarily creating any serious obligations in terms of compliance – firstly because the conventions themselves lack effective enforcement mechanisms and secondly because the parties to a UN convention can often choose to ignore parts of it simply by registering their “reservations”. 

In some cases these reservations can be so sweeping as to negate the essential substance of the agreement. Liesbeth Lijnzaad, in her book, Reservations to UN Human Rights Treaties: Ratify and Ruin? sums up the problem thus:

By making reservations to human rights treaties, states frequently undermine essential rules, and indeed essential human rights guarantees … The impression is that many states, when ratifying, at the same time ruin the treaty. Reservations restrict the potential domestic effect of the human rights treaty, and a large number of reservations made by a great many states will turn a human rights instrument into a moth-eaten guarantee.

In theory, reservations which are “incompatible with the object and purpose” of a UN convention are not allowed but in practice they can be difficult to prevent. When North Yemen acceded to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1989 it declared reservations “in respect of article 5 (c) and article 5 (d) (iv), (vi) and (vii)”. In effect, it was claiming the right to discriminate on racial grounds with regard to political rights, marriage rights, inheritance rights and the right to freedom of thought, conscience and religion.

This was obviously incompatible with the aims of the convention and Australia, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Mexico, the Netherlands, New Zealand, Norway, Sweden and the United Kingdom all lodged formal objections. However, their numbers fell well short of the two-thirds of states-parties required to block the Yemeni reservations, and there was little that could be done about it except patiently cajole: seventeen years later, the UN Committee on the Elimination of Racial Discrimination was continuing to repeat its “recommendation” that Yemen should “consider withdrawing its reservation”.




Meanwhile Saudi Arabia, despite operating what is probably the world’s most comprehensive system of institutionalised discrimination against women, is a party – together with 17 other Arab states – to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The kingdom rationalises this seemingly irreconcilable position, after a fashion, by saying it does not consider itself bound by any part of the convention that conflicts with “the norms of Islamic law”. 

Among the other Arab countries, Bahrain, Egypt, Iraq, Kuwait, Libya, Mauritania, Morocco, Oman, Syria and the UAE have also lodged reservations based on Islamic law.

Citing “Islamic law” in the context of international treaties is especially problematic because no one can be sure what it means. The shari’a is not formally codified, there are various methods of interpretation and scholars can sometimes reach wildly differing conclusions. As Denmark noted in its objection to Saudi Arabia’s reservations, the references to the provisions of Islamic law were “of unlimited scope and undefined character”.

The key point, though, is that religious principles are a convenient vehicle for excusing all manner of abuse. In reality, the abuses usually have more to do with local customs and practice than religious doctrine but invoking religion removes any need to account for them or try to justify them. Since religious belief demands respect and tolerance from others, dressing up unsavoury practices in religious garb becomes a way of silencing critics. The overall effect of dragging Islamic law into human rights debates, then, is to lower standards rather than raise them, as Ann Elizabeth Mayer demonstrates in her book, Islam and Human Rights – Tradition and Politics. “Distinctive Islamic criteria have consistently been used to cut back on the rights and freedoms guaranteed by international law, as if the latter were deemed excessive,” she writes. “The literature arguing that Muslims may have human rights, but only according to Islamic principles, provides the theoretical rationales for many recent government policies that have been harmful for rights.” [page 3]

Although there are many points of contention between the concept of universal rights and Islamic law (as variously conceived), the principal ones are in the areas of women’s rights, freedom of religion, and the treatment of non-Muslims.

This is not to suggest that Islam is incapable of accommodating modern concepts of universal human rights. Individual freedoms are a relatively undeveloped area of Islamic law and Mayer suggests this is largely for historical reasons:

Since the pious Muslim was only supposed to understand and obey the divine law, which entailed abiding by the limits that God had decreed, demands for individual freedoms could sound distinctly subversive to the orthodox mind …

The aim of Islamic law was generally conceived to be ensuring the wellbeing of the Islamic community, or umma, as a whole, in a situation where both the ruler and the ruled were presumed to be motivated to follow the law in order to win divine favour and avoid punishment in Hell. In consequence, shari’a doctrines remained highly idealistic and were not elaborated with a view to providing institutional mechanisms to deal with actual situations where governments disregarded Islamic law and oppressed and exploited their subjects.

Scholars of Islamic law did not traditionally address issues like what institutions and procedures were needed to constrain the ruler and curb oppression; rather, they tended to think of the relationship between ruler and ruled solely in terms of this idealised scheme, in which rulers were conceived of as pious Muslims eager to follow God’s mandate. [pp. 53–54]

Arguments about universality versus cultural relativism are often a red herring – a part of the political game. Arab states often invoke relativist arguments in an international context when they talk about "traditions", “the norms of Islamic law”, etc, but they rarely apply relativist principles within their own countries. In other words, they tend to espouse cultural relativism or universalism as and when it suits them. 

This is very similar to the way western governments often behave when they that claim to uphold universal rights but champion them more strongly among enemies than allies. The Arab states, through their membership of the UN and other bodies, are willing members of the international community; they accept the principle of international law and, along with other countries, play a part in formulating it. They are also among the first to complain about human rights abuses and infringements of international law where Israel is concerned. 

In partially exempting themselves from international standards, the Arab states are not so much arguing for cultural relativism as for a form of cultural selectivity. What they are actually seeking to protect is not the sum-total of authentic local tradition but an imagined, officially-approved version of it which in some cases has to be imposed on reluctant citizens – for example, through the policing of dress codes and the closure of shops at prayer time. The Islamic “norms” that Saudi Arabia waves in international forums are not those of the country as a whole but of the Wahhabi sect, which happens to have become dominant through its political alliance with the royal family.If Arab governments really believed in cultural relativism as a principle they would surely also apply it within their own countries by insisting on respect for the different norms and traditions of whatever distinctive religious, ethnic or regional groups may be found within their own borders. Mostly they do not.

Source: What's Really Wrong with the Middle East, by Brian Whitaker (Saqi Books, 2009).

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