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H is for Human Rights

Written exclusively for Salaam by al-Maktabi

The way in which Muslim scholars have approached the issue of human rights can, schematically, be divided into three groups: the apologists who claim that Islam has most of the human rights that is on today's agenda, the deniers who argue that we essentially have no rights only obligations and duties to God and man, and those in-between who argue that the essence of human rights lie within the basic sources of Islam but later scholars and present governments have perverted these for their own purposes.

Whatever the position on human rights among the scholars the fact is that the situation in the Muslim world is quite deplorable. Governments, armies, foreign corporations, big powers, landlords and others with power and influence have tremendous power over the lives of ordinary peasants and urban dwellers alike. The way the system works is that the closer you are to the one with the most means of domination the less possibility of being inflicted. This infects politics with 'cronyism' and corruption and thus detrimental to the way in which people can express their concerns about their livelihood, and indeed the right to criticise irresponsible authority. Speculation about what is and what is not permitted and prescribed in Islam becomes a bit of a luxury in the face of the most basic denials of human existence in our lands.

What is perplexing is that many of these countries are signatories to various Declarations and Conventions of the United Nations Organisation and its various subsidiaries such as the International Labour Organisation. These Conventions should by now be part of customary international law under which signatories should be legally bound to observe them. Theoretically, then child-labour, the development of chemical weapons, torture, arbitrary arrest and unfair trial and so on should all be actions for which states could be brought to competent national or international courts for trial and effective remedy. But there are a number of problems involved.

Firstly, such actions are simply denied, states often do not sign specific declarations, and finally and most crucially the right to state sovereignty still occupies pride of place in international law. 'The state' is therefore the main obstacle to the implementation of human rights norms and laws. International bodies can do whatever they want to urge and condemn a state but it, on the whole, cannot violate that state's sovereignty. But recent developments in international law are slowly changing this in the most dramatic situations such as Iraq and Kosovo. However, these are also problematic cases partly because in the former case the Security Council gave 'the Allies' the right to bomb Iraq, while in the latter none such ratification was sought. The UN is itself filled with contradictions because its highest body, the SC, is run by a clique of big powers, while in the General Assembly a small Caribbean Island with under one million inhabitants has the same voting power a state with over one hundred million!

The pattern of modern human rights discourse has its roots in the post World War setting, and reflects the imperatives of a West looking into its own mirror and seeing the devastation of wanton power. All the main instruments of human rights law were formulated by the powerful western states and essentially as compromises between the 'Socialist bloc' and the 'democracies' but with key absences. Nuclear war was not made illegal and neither was carpet-bombing, a tactic that the US later used in Vietnam. Human rights law is a new and developing field and with new developments such as the tribunals in Arusha and The Hague to try the perpetrators of 'crimes against humanity'. Further advances should not be counted out, for example more emphasis of the rights of indigenous peoples, and the right to economic development. But the bulwark against this is 'state sovereignty', and thus the right of states to simply ignore Conventions for whatever reason. Thus, France flatly exempts itself from the clause (27 of the Civil Covenant) that says minorities has a right to exist because it claims there are no minorities even in its small overseas possessions! Similarly the US Senate routinely overturns what the President signs or has signed in international conventions, or the state simply does not sign anything, for example, outlawing the use of land mines. The problems at the level of the formulation and even more so monitoring and administration add the numerous problems in the implementation of justice. Thus there is little independence in the appointments to forums such as the Human Rights Committee of the UN.

Yet, these limitations do not mean that nothing has been achieved. There has been definite progress and growing awareness that violations can and will be tried. The recent case of General Pinochet is worth mentioning.

If Muslim states are suspicious that the UN Conventions are not 'culturally sensitive' then perhaps they should constitute their own terms of reference and establish a body or bodies to formulate an 'Islamic human rights' charter with a tribunal, courts and so on. The problem of course is 'state sovereignty' and no Muslim government is willing, no matter how 'Islamic' is claims to be, to listen to outside voices of, even, Islamic justice. The Umma is dead, the state is God. In any case, such a body may just be as ineffective as other such bodies - another organisation with well-heeled officials meeting in exotic settings formulating grand principles but with no teeth. In the meanwhile Muslim scholars can go on debating what is and what is not Islamic in human rights while the powers, or should it be states, that be - in East and West - remain in place while children and women and men languish in prison, starve, are abused…