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MINORITY RIGHTS IN THE MIDDLE EAST

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Minority Rights in the Middle East

JOSHUA CASTELLINO and

KATHLEEN A. CAVANAUGH

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom

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In Memory of Lian Abu Hussein نيسح وبأ نايل ىركذل

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Table of Contents

Table of Case Law ix Table of Legislation x United Nations Documents xii Table of International Organizations’ Documents xvi

Introduction 1

1 Th e Contemporary Middle East 9 Introduction 9 1 Th e Territorial Ambit 11 2 Th e Crucial Peace and Security Questions 14 3 Islam, the Middle East and Human Rights Law 29 4 Constructing Minorities 47 5 Approach to Human Rights by Middle Eastern States 54 Conclusion 78

2 Minority Identities in the Middle East: Religious Minorities 79 Introduction 79 1 Non-Muslim Religious Minorities 82 2 Islamic Minorities 127 Conclusion 140

3 Minority Identities in the Middle East: Ethno-national and Other Minorities 141 Introduction 141 1 Trapped Minorities 142 2 Ethnic/National Minorities 165 3 Political Minorities 176 4 Majoritarian Minorities 179 Conclusion 181

4 Minority Rights in Iraq 182 Introduction 182 1 History 186

viii Table of Contents

2 Identifi cation of Minorities 203 3 Rights of Minorities 221 4 Remedies 240 Conclusion 251

5 Minority Rights in Syria 255 Introduction 255 1 History 264 2 Identifi cation of Minorities 288 3 Rights of Minorities 300 4 Remedies 326 Conclusion 332

6 Minority Rights in Lebanon 334 Introduction 334 1 Th e Unwanted Past 338 2 Identifi cation of Minorities 345 3 Rights of Minorities 350 4 Remedies 362 Conclusion 374

Conclusion 376

Bibliography 383 Index 417

Table of Case Law

Alhaji lla Alkamawa v Alhaji Hassan Bello and Alhaji Malami Yaro [1998] 6 SCNJ 127 . . . . . . . 243 MK Barakeh v. Tel Aviv Magistrate Court et. Al. , HCJ case 5754/10 [petition

withdrawn June 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Zoabi v. Th e Knesset , HCJ case 8148/10 [case pending, order to show cause issued] . . . . . . . . . 147 Ka’adan v. the Israel Land Administration , HCJ case 6698/95 [PD 54(1) 258 (2000)] . . . . . . . . 149 Adalah, et. al. v. Th e National Council for Planning and Building, et. Al. , HCJ

case 2817/06 [June 15, 2010] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 MK Zahava Galonv v. Th e Attorney General, et. al. , HCJ case 466/07 [petition

dismissed January 11, 2012] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Adalah and others v. Th e Minister of the Interior , HCJ cases 7052/03, 7102/03

[May 14, 2006] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Table of Legislation

Arab Charter for Human Rights 1994 Arab Republic of Egypt, Constitution 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122–3 Arab Republic of Egypt, Decree No. 12025 of the Year 2004 Concerning

Certain Provisions Enforcing Law No. 154 of the Year 2004 on Amendment of Certain Provisions of Law No. 26 of the Year 1975 Concerning the Egyptian Nationality July 25, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

Arab Republic of Egypt, Decree No. 1231 of the Minister of the Interior May 2011 . . . . . . . . 158 Assyrian National Pact 1932 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Camp David Accords September 17, 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 23, 25, 150, 158 Charter of the Organisation of the Islamic Conference 1969 . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Covenant of the League of Nations 1919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Darfur Peace Agreement 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Declaration of Agreement for Federal Union of the United Arab Republic,

Syria and Iraq April 17, 1963 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Declaration of Principles on Interim Self-Government Arrangements

for Palestinians (Oslo I) September 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26–7 Declaration of the Establishment of the State of Israel May 14, 1948 . . . . . . . . . . . . . . . . . . . . . 21 Egyptian-Israeli General Armistice Agreement February 24, 1949 . . . . . . . . . . . . . . . . . . . . . . . 21 Egypt-Israel Peace Treaty (Heskem HaShalom Bein Yisrael LeMitzrayim )

March 26, 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 23, 26, 158 Hashemite Kingdom of Jordan, Constitution 1952 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112–13 Islamic Council of Europe, Universal Islamic Declaration of Human

Rights September 19, 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 74–5 Islamic Republic of Iran, Constitution 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 128, 137 Law on the Structure, Duties and Mandate of the Afghanistan Independent

Human Rights Commission (No. 3471) May 14, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 League of Arab States, Arab Charter on Human Rights May 22, 2004 . . . . . . . . . . . . . . . . 4, 74–5 Lebanese-Israeli General Armistice Agreement March 23, 1949 . . . . . . . . . . . . . . . . . . . . . . . . . 21 Pact of the League of Arab States 1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Republic of Lebanon, Constitution 1926, amended 1990 . . . . . . . . . . . . . . . . . . 346, 350–9, 365 Republic of Lebanon, Parliamentary Election Law (Law No. 25) October 8, 2008 . . . . . . 359, 370 Revised Arab Charter on Human Rights May 22, 2004, entered into force March 15, 2008 . . . 75 Syrian Arab Republic, Code of Personal Status For Catholic Communities in Syria,

(Law No. 31) 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Syrian Arab Republic, Constitution 1973, amended

2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 302, 308, 310, 311–14, 316, 320, 322, 324 Syrian Arab Republic, Labour Code (Law No. 279) June 1, 1946 . . . . . . . . . . . . . . . . . . . . 324–5 Syrian Arab Republic, Law of Local Government (Legislative Decree No.

15) May 11, 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319–20 Syrian Arab Republic, Law of Personal Status 1953, amended 1975 . . . . . . . . . . . . . . . . . . . . . . 92 Syrian Arab Republic, Legislative Decree No. 26 April 14, 1973 . . . . . . . . . . . . . . . . . . . . . . . 317 Syrian Arab Republic, Legislative Decree No. 49 April 7, 2011 . . . . . . . . . . . . . . . . . . . . . . . . 263 Th e Balfour Declaration, November 2, 1917 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18–19, 280 Th e Beirut Declaration on the Regional Protection of Human Rights 2003 . . . . . . . . . . . 74–5, 77

xiTable of Legislation

Th e Cairo Declaration 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 74–5 Th e Lebanese Republic, Law of 16 July 1962 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Th e Palestinian-Israeli Agreement on Security Arrangements in Hebron and the

Renewal of the Negotiation, March 31, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Th e Palestinian-Israeli Declaration of Principles on Interim Self-Government

Authority 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Th e Paris Protocol April 29, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Th e People’s Democratic Republic of Algeria, Constitution 1963, amended 1996 . . . . . . . . . 92–3 Th e Republic of Iraq, Constitution 2005 . . . . . . . . . . . . . 163, 186, 202, 221–240, 244, 249, 356 Th e Republic of Yemen, Constitution 1994, amended 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Th e State of Israel, 7 Laws of the State of Israel (LSI) 113 (5713-1952/53) . . . . . . . . . . . . . . . 146 Th e State of Israel, Land Acquisition Law 1953 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Th e State of Israel, Land Administration Law, Amendment No. 7 (5769–2009),

the Book of Laws 2209 August 10, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Th e State of Israel, Lands Law, Amendment No. 3 (5771-2011), the Book

of Laws 2291 April 5, 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Th e State of Israel, Law to Amend the Cooperative Societies Ordinance

(No. 8) 5771-2011 March 30, 2011, the Book of Laws 2286 . . . . . . . . . . . . . . . . . . . . . . 148–9 Th e State of Israel, Law to Amend the Land (Acquisition for Public Purposes)

Ordinance, No. 3 (5770-2010), the Book of Laws 2228 February 15, 2010 . . . . . . . . . . . . . 147 Th e State of Israel, Th e Absentees’ Property Law 1950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Th e State of Israel, Th e Nationality and Entry into Israel Law (Amendment)

July 27, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Th e State of Israel, Th e Nationality and Entry into Israel Law (Amendment)

March 21, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Th e State of Israel, Th e Nationality and Entry into Israel Law July 31, 2003 . . . . . . . . . . . . . . 145 Th e State of Israel, Th e Negev Development Authority Law, Amendment

No. 4 (5770-2010), the Book of Laws 2250 July 22, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Th e Treaty of Lausanne 1923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282, 318 Treaty Alliance between Britain and Iraq October 10, 1922, FO 371/14515

E125/125/93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190–1 Treaty of Peace between the Hashemite Kingdom of Jordan and the State of Israel

(Wadi ‘Araba) October 26, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United Nations Documents

General Assembly Res. 181(II), ‘Future Government of Palestine’, UN Doc. A/Res/181/A-B, November 29, 1947 (29 Nov. 1947) . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 152

General Assembly Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 UNTS 3, entered into force January 3, 1976 . . . . . . . . . . . . . 55

General Assembly Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force March 23, 1976 . . . . . . . . . 55–6

General Assembly Res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A/34/46, entered into force September 3, 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

General Assembly Res. 39/46, annex, 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51 (1984), entered into force June 26, 1987 . . . . . . . . . . . . . . . . . . . . . . . . . 55

General Assembly Res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, UN Doc. A/44/49 (1989), entered into force September 2, 1990 . . . . . . . . . . . . . . . . . . . . . 55

General Assembly Res. 44/128, annex, 44 UN GAOR Supp. (No. 49) at 207, UN Doc. A/44/49 (1989), entered into force July 11, 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . 57

General Assembly Res. 54/4, annex, 54 UN GAOR Supp. (No. 49) at 5, UN Doc. A/54/49 (Vol. I) (2000), entered into force December 22, 2000 . . . . . . . . . . . . . . . 56

General Assembly Res. 54/263, Annex II, 54 UN GAOR Supp. (No. 49) at 6, UN Doc. A/54/49, Vol. III (2000), entered into force January 18, 2002 . . . . . . . . . . . . . . . . 57

General Assembly Res. 54/263, Annex I, 54 UN GAOR Supp. (No. 49) at 7, UN Doc. A/54/49, Vol. III (2000), entered into force February 12, 2002 . . . . . . . . . . . . . . . 57

General Assembly Res. 45/158, annex, 45 UN GAOR Supp. (No. 49A) at 262, UN Doc. A/45/49 (1990), entered into force July 1, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

General Assembly Res. 60/251, UN Doc. A/RES/60/251, entered into force April 3, 2006 . . . . 73 General Assembly Res. 57/199, UN Doc. A/RES/57/199, entered into force

June 22, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 General Assembly Res. 61/106, Annex I, UN GAOR, 61st Sess., Supp. No. 49,

at 65, UN Doc. A/61/49 (2006), entered into force May 3, 2008 . . . . . . . . . . . . . . . . . . . . . 56 General Assembly Res. 63/117, UN Doc. A/RES/63/177 (2008), opened for

signature September 24, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 General Assembly Res. 61/177, UN Doc. A/RES/61/177 (2006), entered into

force December 23, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Secretary General Report UN Doc. S/12611, March 19, 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Security Council Res. 242, S/RES/242 (1967), November 22, 1967 . . . . . . . . . . . . . . . . . . . . . 26 Security Council Res. 425, S/RES/425 (1978), March 19, 1978 . . . . . . . . . . . . . . . . . . . . . . . . 23 Security Council Res. 426, S/RES426 (1978), March 19, 1978 . . . . . . . . . . . . . . . . . . . . . . . . . 23 Security Council Res. 509, S/RES/509 (1982), June 6, 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Independent Expert on Human Rights and Extreme Poverty, Report

E/CN.4/1999/48, November 11–14, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Independent Expert on Human Rights and Extreme Poverty, Report

E/CN.4/2004/43/Add.1, October 2–5, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Independent Expert on Human Rights and Extreme Poverty, Report E/CN.4/2004/43,

November 18–20, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Independent Expert on the Situation of Human Rights in Somalia, Report E/CN.4/1999/103,

November 11, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

xiiiUnited Nations Documents

Independent Expert on the Situation of Human Rights in Somalia, Report E/CN.4/2000/110, January 26, 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Independent Expert on the Situation of Human Rights in Somalia, Report E/CN.4/2002/119, January 14, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Independent Expert on the Situation of Human Rights in Somalia, Report E/CN.4/2004/103, November 30, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Independent Expert on the Situation of Human Rights in Somalia, Report E/CN.4/2005/117, March 11, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Independent Expert on the Situation of Human Rights in Somalia, Report A/HRC/2/CRP.2, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Independent Expert on the Situation of Human Rights in Somalia, Report A/HRC/7/26, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Representative of the Secretary General on Internally Displaced Persons, Mission to the Sudan, Report E/CN.4/2002/95/Add.1, February 5, 2002 . . . . . . . . . . . . . . . 72

Representative of the Secretary General on Internally Displaced Persons, Mission to the Sudan, Report E/CN.4/2003/86/Add.1, November 27, 2002 . . . . . . . . . . . . . 72

Representative of the Secretary General on Internally Displaced Persons, Mission to the Sudan, Report E/CN.4/2005/8, July 24–31, 2004 . . . . . . . . . . . . . . . . . . . . . 72

Representative of the Secretary General on Internally Displaced Persons, Mission to Southern Sudan, Report E/CN.4/2006/71/Add.6, February 13, 2006 . . . . . . . . . 72

Special Representative of the Secretary General on the Situation of Human Rights Defenders, Mission to Israel and the Occupied Palestinian Territories, Report E/CN.4/2006/95/Add.3, October 4–11, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71–2

Special Rapporteur on the Right to Education, Mission to Morocco, Report A/HRC/4/29/Add.2, February 7, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Special Rapporteur on Adequate Housing as a Component of the Right of an Adequate Standard of Living, Visit to the Occupied Palestinian Territories, Report E/CN.4/2003/5/Add.1, January 5–10, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Special Rapporteur on Adequate Housing as a Component of the Right of an Adequate Standard of Living, Mission to Afghanistan, Report E/CN.4/2004/48/Add.2, September 1–12, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Special Rapporteur on Adequate Housing as a Component of the Right of an Adequate Standard of Living, Mission to Iran, E/CN.4/2006/41/Add.2, July 19–30, 2005 . . . . . . . . . . 72

Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mission to Afghanistan, Report E/CN.4/2003/3/Add.4, October 13–23, 2002 . . . . . . . . . . . . . . . . . . . . 71

Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, Mission to the Sudan, Report E/CN.4/2005/7/Add.2, June 2–12, 2004 . . . . . . . . . . . . . . . . 72

Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mission to Afghanistan, Report A/HRC/8/3/Add.6, May 5–15, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Special Rapporteur on Freedom of Religion or Belief, Mission to Algeria, Report E/ CN.4/2003/66/Add.1, September 16–26, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 92

Special Rapporteur on Freedom of Religion or Belief, Mission to Israel, Report A/HRC/10/8/Add.2, January 20–27, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Special Rapporteur on Human Rights and Counter Terrorism, Mission to Israel, Report A/HRC/6/17/Add.4 [and A/HRC/6/17/Add.4/Corr.1], July 3–10, 2007 . . . . . . . . 71–2

Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Mission to Kuwait, Report E/CN.4/1997/71/Add.2, November 17–27, 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Mission to Mauritania Report A/HRC/7/19/Add.6, January 20–24, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

xiv United Nations Documents

Special Rapporteur on the Human Rights of Migrants, Mission to Iran, Report E/CN.4/2005/85/Add.2, February 22–29, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Special Rapporteur on the Right to Food (3–12/07/2003), Mission to the Occupied Palestinian Territories, Report E/CN.4/2004/10/Add.2, July 3–12, 2003 . . . . . . . . 72

Special Rapporteur on the Right to Freedom of Opinion and Expression, Mission to the Sudan Report E/CN.4/2000/63/Add.1, September 20–26, 1999 . . . . . . . . . . 72

Special Rapporteur on the Right to Freedom of Opinion and Expression, Mission to Iran, Report E/CN.4/2004/62/Add.2, November 3–11, 2003 . . . . . . . . . . . . . . . 72

Special Rapporteur on the Situation of Human Rights in Iraq, Report E/CN.4/2001/42, November 5–9, 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Special Rapporteur on the Situation of Human Rights in Iraq, February 11–15, 2002 . . . . . . . . 72 Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian

Territories since 1967, Report A/HRC/10/20, February 11, 2009 . . . . . . . . . . . . . . . . . . . . . 72 Special Rapporteur on the Situation of Human Rights in the Sudan,

Report E/CN.4/1998/66, January 1, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Special Rapporteur on the Situation of Human Rights in the Sudan,

Report E/CN.4/1999/38/Add.1, May 17, 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Special Rapporteur on the Situation of Human Rights in the Sudan,

Report E/CN.4/2000/36, April 19, 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Special Rapporteur on the Situation of Human Rights in the Sudan,

Report E/CN.4/2002/46, January 23, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Special Rapporteur on the Situation of Human Rights in the Sudan,

Report E/CN.4/2003/42, January 6, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Special Rapporteur on the Situation of Human Rights in the Sudan,

Report E/CN.4/2006/111, January 11, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Special Rapporteur on the Situation of Human Rights in the Sudan,

Report A/61/469, September 20, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Special Rapporteur on the Situation of Human Rights in the Sudan,

Report A/HRC/7/22, March 3, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Special Rapporteur on Torture and Other Cruel, Inhumane and Degrading

Treatment or Punishment, Report A/HRC/4/33/Add.3, June 25–29, 2006 . . . . . . . . . . . . . . 71 Special Rapporteur on Traffi cking in Persons, especially Women and Children,

Mission to Lebanon, Report E/CN.4/2006/62/Add.3, September 7–16 , 2005 . . . . . . . . . . . 73 Special Rapporteur on Traffi cking in Persons, especially Women and Children,

Mission to Bahrain, Qatar and Oman, Report A/HRC/4/23/Add.2, November 17, 2006 . . . 72 Special Rapporteur on Violence against Women, its Causes and Consequences, Mission

to Pakistan and Afghanistan, Report E/CN.4/2000/68/Add.4, September 1–13, 1999 . . . . . 71 Special Rapporteur on Violence against Women, its Causes and Consequences, Mission

to the Occupied Palestinian Territories, E/CN.4/2005/72/Add.4, June 13–18, 2004 . . . . . . . 72 Special Rapporteur on Violence against Women, its Causes and Consequences, Mission

to the Sudan, Report E/CN.4/2005/72/Add.5, September 28 to October 2, 2004 . . . . . . . . . 72 Special Rapporteur on Violence against Women, its Causes and Consequences, Mission

to Iran, Report E/CN.4/2006/61/Add.3, January 29 to February 6, 2005 . . . . . . . . . . . . . . . 72 Special Rapporteur on Violence against Women, its Causes and Consequences, Mission

to Afghanistan, Report E/CN.4/2006/61/Add.5, July 9–16, 2005 . . . . . . . . . . . . . . . . . . . . . 71 Special Rapporteur on Violence against Women, its Causes and Consequences, Mission

to Algeria, Report A/HRC/7/6/Add.2, January 21 to February 1, 2007 . . . . . . . . . . . . . . . . . 71 Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions; Special

Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health; Representative to the Secretary General on Human Rights of Internally Displaced Persons and Special Rapporteur on

United Nations Documents xv

Adequate Housing as a Component of the Right of an Adequate Standard of Living, Joint visit to Lebanon and Israel, Report A/HRC/2/7, September 10–13, 2006 . . . . . . . . . . . . . . . . . . . 71

Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Mission to Syria, UN.Doc. A/HRC/17/25/Add.3, March 21, 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324

Working Group on Arbitrary Detention, Mission to Iran, Report E/CN.4/2004/3/Add.2/Corr.1, February 15–27, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Working Group on Enforced or Involuntary Disappearances, Mission to Yemen, Report E/CN.4/1999/62/Add.1/Corr.1, August 17–21, 1998 . . . . . . . . . . . . . . . . . . 73

Working Group on the Use of Mercenaries, Mission to Afghanistan, Report A/HRC/15/25/Add.2, April 4–11, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

UN Commission on Human Rights, Report on the situation of human rights in Iraq, March 15 , 2002, E/CN.4/2002/44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

UN High Commissioner for Refugees, Background Information on the Situation of Non-Muslim Religious Minorities in Iraq, October 1, 2005 . . . . . . . 204, 210, 217

UN High Commissioner for Refugees, ‘Surviving in the city: A review of UNHCR’s operation for Iraqi refugees in urban areas of Jordan, Lebanon and Syria’, July 2009, PDES/2009/03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

UN High Commissioner for Refugees, Iraq: Fact Sheet, September 2010 . . . . . . . . . . . . . . . . 246 UN High Commissioner for Refugees, Syria: Fact Sheet, August 2010 . . . . . . . . . . . . . . . . . . . 157 UN High Commissioner for Refugees, Eligibility Guidelines for Assessing the

International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

UN High Commissioner for Refugees, Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers, April 2009 . . . . . . . . . . . . . . 206, 217

UN Human Rights Committee, Syria: Th ird Periodic Report, UN. Doc. CCPR/C/SYR/2004/3, October 19, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

UN Human Rights Committee, Syria: Concluding Observations, UN Doc. CCPR/CO/84/SYR, August 9, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293, 304

Table of International Organizations’ Documents

Adalah Briefi ng Paper, ‘New Discriminatory Laws and Bills in Israel’ (June 2011) . . . . . . . . . . 147 Adalah Briefi ng Paper, ‘Restrictions on Human Rights Organizations and the

Legitimate Activities of Arab Political Leaders in Israel’ submitted to the European Parliament, Committee on Foreign Aff airs, Sub - Committee on Human Rights (June 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

Adalah Th e Legal Center For Arab Minority Rights In Israel, Nomads Against Th eir Will: Th e attempted expulsion of the Arab Bedouin in the Naqab: Th e example of Atir–Umm al-Hieran (September 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166–7

Afghanistan Research and Evaluation Unit, Legacies of Confl ict: Healing Complexes and Moving Forwards in Bamiyan Province (October 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 105

Al-Marsad – Arab Human Rights Centre in Golan Heights, Parallel Report to the Committee on the Elimination of All Forms of Racial Discrimination on the Occasion of the Consideration of the Fourteenth to Sixteenth Periodic Report of Israel (23 January 2012) . . . . . 133

Amnesty International 2006, Iran: Defending minority rights – the Ahwazi Arabs AI Index: MDE 13/056/2006 (May 17, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

Amnesty International, ‘Assassination of Syrian Kurdish leader a ‘dangerous’ escalation’ (October 11, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

Amnesty International, Afghanistan: Th e human rights of minorities AI Index: ASA 11/014/1999 (November 1, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Amnesty International, Annual Report 2011 – Algeria (May 13, 2011) . . . . . . . . . . . . . . . . . . . . 93 Amnesty International, Annual Report 2011 – Iran (May 13, 2011) . . . . . . . . . 103, 129, 160, 164 Amnesty International, Egypt: Free expression still outlawed in Egypt AI index:

MDE 12/022/2009 (December 22, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Amnesty International, Troubled Waters – Palestinians Denied Fair Access to Water AI

Index: MDE 15/027/2009 (October 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Amnesty International, Year of Rebellion: State of Human Rights in the Middle East and

North Africa MDE 01/001/2012 (January 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Danish Immigration Service, Security and Human Rights in South/Central Iraq

(September 10, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Democratic Principles Working Group Report, Final Report on the Transition to

Democracy in Iraq (November 2002) [report on fi le with authors] . . . . . . . . . . . . . . . . . . . . 252 Her Majesty’s Stationary Offi ce, Palestine Statement of Policy by HM Government in

the UK (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Her Majesty’s Stationary Offi ce, Palestine: Termination of Mandate, 15th May

1948 – Statement Prepared for Public Information by the Colonial Offi ce and Foreign Offi ce (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Her Majesty’s Stationary Offi ce, Parliamentary Papers (1921) . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Human Rights Watch, ‘Lebanon: Removal of Religion from IDs Positive but not

Suffi cient’ (February 16, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Human Rights Watch, Denied Dignity: Systematic Discrimination and Hostility

toward Saudi Shia Citizens (September 3, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139, 177 Human Rights Watch, Far From Justice: Syria’s Supreme State Security Court (February

24, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302

xviiTable of International Organizations’ Documents

Human Rights Watch, Iraq: Forcible Expulsion of Ethnic Minorities (2003) . . . . . . . . . . . . . . . . 247 Human Rights Watch, Land and Housing Rights Violations in Israel’s Unrecognized

Bedouin Villages (March 31, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Human Rights Watch, Looser Rein, Uncertain Gain: A Human Rights Assessment of

Five Years of King Abdullah’s Reforms in Saudi Arabia (September 27, 2010) . . . . . . . . . . . . . 178 Human Rights Watch, Nowhere to Flee: Th e Perilous Situation of Palestinians in Iraq

(September 10, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 Human Rights Watch, Stateless Again: Palestinian-Origin Jordanians Deprived of their

Nationality (February 2, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Human Rights Watch, Th e Bedouins of Kuwait: “Citizens without Citizenship” (August 1,

1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Human Rights Watch, Th e Ismailis of Najran: Second-class Saudi Citizens (September 22,

2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Human Rights Watch, UPR Submission: Egypt, Freedom of Religion (September

2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Human Rights Watch, World Report 2010: Algeria (January 20, 2010) . . . . . . . . . . . . . . . . . . . . 93 Human Rights Watch, World Report 2011 : Libya (January 24, 2011) . . . . . . . . . . . . . . . . . . . . 171 Human Rights Watch, World Report 2011: Syria (January 24, 2011) . . . . . . . . . . . . . . . . . . . . 164 Human Rights Watch, World Report 2012: Algeria (January 22, 2012) . . . . . . . . . . . . . . . . . . . . 93 Human Rights Watch, World Report 2012: Iran (January 22, 2012) . . . . . . . . . . . . . . . . . . . . . 103 Human Rights Watch, World Report 2012: Lebanon (January 22, 2012) . . . . . . . . . . . . . . . . . . 156 Immigration and Refugee Board of Canada, Lebanon: Whether Bedouins born in

Lebanon are entitled to Lebanese citizenship and are able to obtain identity documents; information on decree 5247, including whether it enabled naturalization of stateless Bedouins and information on the time before it was in eff ect; consequences of illegal entry to or exit from Lebanon (February 20, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

Internal Displacement Monitoring Centre, ‘Afghanistan: Increasing hardship and limited support for growing displaced population’ (October 28, 2008) . . . . . . . . . . . . . . . . 159

Internal Displacement Monitoring Centre, Internal Displacement: Global Overview of Trends and Developments in 2010 – Iraq (March 23, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 204

Internal Displacement Monitoring Centre, Internal Displacement: Global Overview of Trends and Developments in 2010 – Syria (March 23, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 132

International Crisis Group, ‘Iraq and the Kurds: Confronting Withdrawal Fears’ (March 28, 2011) 103 Middle East Report 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

International Crisis Group, ‘Popular Protest in North Africa and the Middle East (VI): Th e Syrian People’s Slow-motion Revolution’ (July 6, 2011) 108 Middle East/North Africa Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

International Crisis Group, ‘Th e next Iraqi war? Sectarianism and Civil Confl ict’ (February 26, 2006) 52 Middle East Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252

International Crisis Group, ‘Uncharted Waters: Th inking Th rough Syria’s Dynamics’ (November 24, 2011) 31 Middle East Briefi ng 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

International Crisis Group, Iraq and the Kurds: Confronting Withdrawal Fears , (March 28, 2011) 103 Middle East Report 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

International Federation for Human Rights, Afghan women under Taliban repression (December 15, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

International Federation for Human Rights, Th e Hidden Side of Iran: Discrimination against ethnic and religious minorities (October 12, 2010) . . . . . . . . . . . . . . . . . . . 129, 160, 164

International Organization For Migration, ‘IOM Emergency Needs Assessments’ (March 15, 2008) IOM Bi-weekly Report 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

Israeli Central Bureau of Statistics, Statistical Abstract of Israel 2009 , No. 60 . . . . . . . . . . . . . . . 147 Mandaean Human Rights Group, Mandaean Human Rights Report (November 2009) . . . . . . . 216

xviii Table of International Organizations’ Documents

Minorities at Risk Project, Assessment for Shi’is in Bahrain (December 31, 2003) . . . . . . . . . . . 180 Minority Group International, World Directory on Minorities-Lebanon: Maronites (2008) . . . . . 123 Minority Right Group International, World Directory of Minorities –Iran: Christians (2010) . . . 114 Minority Rights Group International, ‘Israel’s denial of the Bedouin’ (November 2011) . . . . . 167 Minority Rights Group International, ‘Seeking justice and an end to neglect: Iran’s

minorities today’ (February 16, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Minority Rights Group International, ‘Still Targeted: Continued Persecution of Iraq’s

Minorities’ (June 10, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 Minority Rights Group International, State of the World’s Minorities and Indigenous

Peoples 2010- Iraq (July 1, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples

2011 – Yemen (July 6, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples

2011 – Syria (July 6, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples

2011 – Iran (July 6, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 160 Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples

2011:Israel and the Occupied Palestinian Territory (OPT) (July 6, 2011) . . . . . . . . . . . . . . . . 151 Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples – Yemen: Jews (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples – Tunisia : Overview (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples – Jordan: Christians (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples – Sudan : Copts (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples: Copts of Egypt (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Minority Rights Group International, World Directory of Minorities: Gale Group Inc

Alawis of Syria (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples – Lebanon : Overview (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples –Syria- Ismailis (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples – Jordan: Palestinians (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples – Morocco : Berber (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples – Afghanistan : Uzbeks and Turkmens (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Minority Rights Group International. World Directory of Minorities and Indigenous

Peoples – Algeria: Overview (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 REDRESS, Th e Draft Social Control Act, 2011, for Khartoum State: Flogging into

Submission for the Public Order (November 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Refugees International, Kuwait: Still Stalling on Statelessness (May 11, 2010) . . . . . . . . . . . . . . 166 Refugees International, Nationality Rights for All: A Progress Report and Global

Survey on Statelessness ( March 11, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Syrian Human Rights Committee, Report on the Human Rights Situation in Syria

over a 20-Year Period (1979–1999) (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 United Kingdom: Home Offi ce, Country of Origin Information Report – Iraq (March

25, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

Table of International Organizations’ Documents xix

United States Commission on International Religious Freedom, Annual Report 2011 – Countries of Particular Concern: Iraq (April 28, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

United States Commission on International Religious Freedom, Annual Report 2011 – Countries of Particular Concern: Egypt (April 28, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

United States Commission on International Religious Freedom, Annual Report 2011 (May 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 214

United States Commission on International Religious Freedom, Annual Report 2011 – Countries of Particular Concern: Iran (April 28, 2011) . . . . . . . . . . . . . . . . . . . . 103, 115

United States Commission on International Religious Freedom, Annual Report 2011 – Countries of Particular Concern: Sudan (April 28, 2011) . . . . . . . . . . . . . . . . . . . . . . 119

United States Commission on International Religious Freedom, Annual Report 2011 – Countries of Particular Concern: Iraq (April 28, 2011)

United States Commission on International Religious Freedom, Annual Report 2012 – Countries of Particular Concern: Iran (March 20, 2012) . . . . . . . . . . . . . . . . . . . . . . 175

United States Commission on International Religious Freedom, Iraq Report (2008) . . . . . . . . . 217 United States Department of State, 2003 Country Report on Human Rights

Practices – Yemen (February 25, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 United States Department of State, 2006 International Religious Freedom

Report – Sudan (September 15, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 United States Department of State, 2009 International Religious Freedom Report- Bahrain

(October 26, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 United States Department of State, 2009 International Religious Freedom Report- Iraq

(November 17, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 United States Department of State, 2010 International Religious Freedom Report – Syria

(September 13, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 112 United States Department of State, 2010 International Religious Freedom Report – Algeria

(September 13, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 United States Department of State, 2010 International Religious Freedom Report – Morocco ,

(13 September 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 United States Department of State, 2010 International Religious Freedom Report – Tunisia

(September 13, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 United States Department of State, 2010 International Religious Freedom Report – Lebanon

(September 13, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90, 124, 335 United States Department of State, 2010 International Religious Freedom Report – Yemen

(September 13, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 United States Department of State, 2010 International Religious Freedom Report – Saudi Arabia

(September 13, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 United States Department of State, 2010 International Religious Freedom Report – Bahrain

(September 13, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

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Introduction

It is diffi cult to imagine another political space that raises such contentious debates—in the political, legal, and historical spheres—than the Middle East. Coming closer to an understanding of what we refer to as the contemporary Middle East will challenge, often confuse, and most certainly demand that we unpack existing narratives. Th e meta-narrative aspect of the Middle East is cap- tured in discourse that endeavours to defi ne its political, territorial, and cultural contours. In the end we suggest not just one geography, but multiple geographies and not a fi xed, immovable space but one which, through its historical social formation, has been continually transformed.

Th e spatial dynamics of the exogenous (colonially defi ned borders) versus the endogenous plays out in how we read this region. Trying to unpack what we mean by the ‘Middle East’ opens up not just a territorial but also a cultural and political space and relates to this notion of meta-narrative in two distinct ways. First, there is a tendency to characterize what happens within these spaces as something dis- crete. For example, analysis of the interplay between politics and religion (Islam) in the region suggests that religion’s piercing of the public sphere is defi ning of the region. Th at is, by labelling something as an Islamist state or suggesting the infl uence of Islamist political parties, we have somehow defi ned not only the region but fi xed everything that happens within it. Secondly, as Milton-Edwards has argued, analysis of the Middle East which suggests that, somehow distinct from other parts of the globe, confl ict is ‘inevitable and endemic’ is pervasive. 1 Trying to explain why so much of Western scholarship codifi es the Middle East in such specifi c ways preoccupies Said’s seminal work, Orientalism . Certainly one answer may lie in the nature of the readings themselves and, as Said has argued:

. . . the Orient (‘out there’ towards the East) is corrected, even penalized, for lying outside the boundaries of European society, ‘our’ world; the Orient is thus Orientalized , a process that not only marks the Orient as the province of the Orientalist but also forces the uniniti- ated Western reader to accept Orientalist codifi cations . . . as the true Orient. 2

Avoiding such a limited and reductionist view of the Middle East is our fi rst and interminable task. As we fi x our focus on minority rights in the Middle East, we are confronted with a second challenge. Th e concept of ‘minorities’ emerged as the Middle East itself emerged; a construct borne of ‘a traumatic epistemological

¹ B Milton-Edwards and P Hinchcliff e, Confl icts in the Middle East since 1945 (2nd edn Routledge 2004) 1.

² E Said, Orientalism (Penguin Books 1995) 67.

Introduction2

transformation’. 3 Nations were carved from communities, sometimes dividing groupings between these newly formed states. Much like the exogenous construc- tion of what we call the ‘Middle East’, understanding how to engage the minorities discourse in the context of this territorial ambit demands that we do not graft a conceptual concept on to a society or, as White argues, we risk ‘losing sight of how the social and political groups these categories describe appeared and developed’. 4

In examining the shifting constructions of religious and ethnic minorities in the Middle East, our focus will be on two primary questions; how the socio- political groups that we defi ne as minorities engage (or are excluded from) vari- ous sites of power and, secondly how state practices with regard to minorities (and ostensibly based on Islamic authority) intersect and inform modern con- stitutionalism and international law. We are mindful that such analysis should not posit how ‘old’ or ‘traditional’ Islamic law exists side-by-side with ‘new’ or ‘modern’ constitutional law, as these divisions are never so clear in practice.

In the context of these challenges, and to enable the articulation of additional models of minority rights protection derived from within the non-Westernized world, 5 this volume seeks to examine the context within which minority rights operates within this contested region. Th e volume comprises six main chapters. Chapter 1 endeavours to decode and reframe the language which suggests that the Middle East, as a broad concept, and Islam, as a particular fi xture within it, are somehow distinct from the larger debates which preoccupy most states. In Chapters 2 and 3, we provide an overview of minorities in the Middle East before grounding our discussion in three case studies—Iraq, Syria, and Lebanon in the fi nal three chapters of the book.

Chapter 1 tackles some of the most contested terrain. Th e argument that the Middle East shares narratives both endogenously and exogenously is explored as we set out the historical, social, and territorial formation of the region, focussing on events that have helped shape and reshape this space externally and inter- nally. Th e movement from pre-industrial to post-industrial societies, and the varying responses to these socio-economic transformations at sub-state, state, and regional levels, has necessitated the interplay between religion and politics, religion and rights, and the interface between politics and law. Th ese myriad forces have generated not just one but multiple narratives at the state and civil society level, which are explored. Th ese narratives are shared, remain indistinc- tive at times, and raise and explore pinpricking issues concerning the territorial dimension of each state and the attendant identities that have emerged within the region. Contemporary alliances, both intra-group and between groups, form the basis of our typology and provide the backdrop to our case studies.

³ B White, ‘Th e Nation-State Form and the Emergence of “Minorities” in Syria’ (2007) 7(1) Studies in Ethnicity and Nationalism 64, 64.

⁴ Ibid 81. ⁵ Th is volume forms the third in a series of books. See J Castellino and E Dominguez Redondo,

Minority Rights in Asia: A Comparative Legal Analysis (Oxford University Press 2006) and J Castellino and D Keane, Minority Rights in the Pacifi c: A Comparative Legal Analysis (Oxford University Press 2009).

Introduction 3

Th e second section of Chapter 1 examines how confl icts since 1945 have shaped this region with particular reference to the Arab–Israeli confl icts and the post 9–11 ‘war on terror’. Th e Arab–Israeli confl icts have left an indelible imprint on both regional and international political landscapes. Th eir impact on the region has not only shaped intra-state discourse (in some cases as a source of defl ection from internal dissent and unrest), but, equally, the Palestinian Diaspora has sig- nifi cantly altered the demographics and politics of receiving states where many have found temporary homes. Th e armed intervention in Iraq 6 and Afghanistan, and the resurgence of more radical elements within Islamist parties are the most visible by-products in the aftermath of attacks on US soil on 11 September. In the shadow of these interventions, expressed as wars of aggression, a form of ‘law-fare’ has emerged, which endeavours to extinguish the division between law and power and which has had an impact on domestic constitutionalism, globally.

As Fitzpatrick argued, the post-11 September ‘war’ on terrorism ‘tested the lim- its of the legalistic approach’ and saw powerful states such as the US attempt to stretch the bedrock of international human rights and humanitarian law principles beyond what they could bear, by carefully crafting legal lacunae and constructive ambiguities into relevant texts for political purposes. Th e discourse that accom- panied this ‘war’, much like that of the Arab–Israeli confl ict, sought to infi ltrate and distract from a more critical and complex reading of what underpinned local and discrete confl icts, both in the Middle East and worldwide. While the impact of this armed confl ict paradigm has been felt across the international political landscape, its eff ects have been most palpable in the Middle East and the Muslim world. In terms of relations with the West, the events of 11 September awoke the political dimensions of the cultural debate that underpinned Huntington’s ‘clash of civilizations’ hypothesis 7 and Lewis’s readings on the ‘role’ of Islam. 8 While the rhetoric may have been modifi ed with a change in US and other administrations, the ‘rights-free zones’ 9 created have been harder to dispel.

Th e interplay between religion and politics and religion and human rights is highlighted in the third section of the opening chapter. In contradistinction to arguments suggesting that the role of religion in the public space is somehow spe- cifi c to the Middle East, we posit that issues related to human rights and democ- racy in the Middle East raise a multiplicity of views. Th e tension between the

⁶ Th e presence of militant groups in Iraq, one off spring of the intervention, has had immediate and dire eff ects on the human rights situation in general, but the burden on minority communities has been particularly heavy. See P Taneja, Assimilation, Exodus, Eradication: Iraq’s Minority Communities since 2003 (Minority Rights Group International 2007).

⁷ See SP Huntington, ‘Th e Clash of Civilizations’ (1993) 72(3) Foreign Aff airs 22–49. ⁸ B Lewis, Islam and History: Ideas, People and Events in the Middle East (2nd edn Open Court

2001). For a more informative read see AM Emon, Mark Ellis, and Benjamin Glahn, Islamic Law and International Human Rights Law (Oxford University Press forthcoming).

⁹ Fitzpatrick adapts this term, fi rst introduced by HH Koh, ‘America’s Off shore Refugee Camps’ (1994) 29 Richmond Law Review 139, 140–1 to describe state policies that developed in the ‘war on terror’. See J Fitzpatrick, ‘Speaking Law to Power: Th e War against Terrorism and Human Rights’ (2003) 14(2) European Journal of International Law 242, 241–64.

Introduction4

public versus private space debate in the Muslim world is, in many ways, played out in many other jurisdictions. 10 While Islam, with its origins in the Arab world, does indeed factor at both state and civil society level and, therefore, contains characteristics inextricably linked to these multiple geographies, it is equally true that its practitioners are not homogenous. For Muslims, the question of faith in the public sphere engages, challenges and, for some, creates tension, not unlike the challenges posed by the seeping of religiosity into public discourses in the US with the Christian right, as well as in other jurisdictions. 11 Clearing away the idea of one ‘Arab street’ leaves open the possibility of many intersections, of diff erent dialogues emerging at the interface of faith and politics in the Middle East.

Section 4 looks at the concept and defi nition of a minority. Whilst in the context of this review, it is necessary to examine the historical development of the minority rights regime, including defi nitional debates, there are signifi cant studies devoted to minority rights and we will not endeavour to replicate these. Rather, woven throughout our review is an interrogation of the process by which we impose the conceptual category of a ‘minority’ on a society. As we will argue, the status of minority is one conferred, not adopted by the communities in ques- tion, and is refl ective of how groups relate to sites of power.

Th e fi fth and fi nal section of Chapter 1 assesses the approach to human rights by Middle Eastern states with a review of state participation in the dual United Nations human rights regimes (treaty- and charter-based). We focus on questions of state compliance under each mechanism through an assessment of reserva- tions and declarations to treaties aimed at nullifying or restricting specifi c treaty obligations; through engagement with the reporting obligations to treaty-based organs, and through participation of these states in the monitoring mechanisms. Comment is also off ered on the attempts made to create a regional frame- work for the region in the form of the Arab Charter, 12 of Islamic human rights schemes such as the Beirut 13 and Cairo Declarations, 14 and the Universal Islamic Declaration of Human Rights, 15 which have emerged under the League of Arab States and the Organization of the Islamic Conference (OIC). Although chal- lenges to the universality of the rights regime, which are raised frequently when Middle Eastern states interface with international human rights mechanisms,

¹⁰ For an authoritative analysis of the role of religion in constitutional laws in every country in the world see J Temperman, State–Religion Relationships and Human Rights Law (Martinus Nijhoff /Brill 2010).

¹¹ See D Herbert, Religion and Civil Society: Rethinking Public Religion in the Contemporary World (Ashgate 2003).

¹² Adopted by the Governments of the Council of League of Arab States on 15 September 1994 and reprinted in (1997) 18 HRLJ 151.

¹³ League of Arab States, Arab Charter on Human Rights, 22 May 2004, entered into force 15 March 2008.

¹⁴ Ibid. ¹⁵ Islamic Council of Europe, Universal Islamic Declaration of Human Rights, 19 September

1981.

Introduction 5

suggest some degree of incompatibility, our accounting of the development and implementation of human rights law in the Middle East yields a more compli- cated record. 16

Chapters 2 and 3 seek to provide a taxonomy and overview of minorities in the region. As the territorial ambit of the Middle East is both contested and dynamic, our approach to defi ning this ‘territory’ reads the Middle East broadly. Th erefore, when auditing minorities in the region, we include the oil-producing countries of Bahrain, Kuwait, Saudi Arabia, Oman, Qatar, the United Arab Emirates, and Yemen; 17 the Fertile Crescent region of Israel/Occupied Territories, Jordan, Lebanon, Iraq, and Syria; the North African countries of Algeria, Egypt, Libya, Morocco, and Tunisia; the sub-Saharan members of the League of Arab States, namely, Sudan, Mauritania, Djibouti, Somalia, and the Comoros Islands; and, fi nally, the non-Arab states of Iran and Afghanistan. Our taxonomy draws from existing literature on minorities, although our classifi cation and groupings refl ect the nature of in-group/out-group relationships within a state(s). In a number of cases, the minority in question may either numerically, or politically, have a diff erent relationship depending on indi- vidual states; dominant in one, subservient or ‘at risk’ in another. In as much as it is possible, we address this variance in our taxonomy. Whilst we have endeavoured to be exhaustive in identifying the groups within the region as well as their relationship to the state(s) in which they live, we do not provide a detailed audit of all minority groups in the region. Rather we have focussed on groups that are transnational and/ or those that inform the socio-economic, cultural, or security developments within or between states in the region.

When grouping together minority communities in the Middle East, two pri- mary categories emerge—religious minorities, in general, and Muslim ethnic groups. Yet we suggest that these classifi cations may not be suffi cient to explain a particular group’s minority status within a society. Some of the more recent scholarship on minorities has come from social scientists who have applied com- parative methods to the study of minorities, using social science theories on minority-group formation and identity. Rose’s 2001 summary of minority stud- ies, for example, demonstrates how variables such as political and cultural factors were signifi cant in determining minority status. 18 We draw from this literature to help us better understand how dominance and power, via exclusion and/or mar- ginalization, factor in determining minority status. Deconstructing Islam as an actor that occupies a primary role in determining the minority status of groups has the eff ect of exposing a far more complex set of variables that ‘cause the dif- ferentiation and social fact of minority status’. 19 Th at political and cultural factors

¹⁶ For a similar discussion that encompassed the so-called ‘Asian Values’ debate see Castellino and Dominguez Redondo (n 5) 11–25.

¹⁷ Th is area is also referred to as the Arabian Peninsula. ¹⁸ A Rose, ‘Minorities’ in NJ Melzer and PW Baltes (eds), International Encyclopaedia of the Social

and Behavioural Sciences vol 14 (Elsevier 2001) 901. ¹⁹ Ibid 13.

Introduction6

play visible roles in determining minority status is perhaps most clearly illustrated in cases where the relative size of a particular community is not determinant of its status.

Our taxonomy is therefore divided into sociopolitical groupings. Although the primary categories of religion (subdivided) and ethnicity are retained, three additional categories have been added—majoritarian minorities, political minor- ities, and trapped minorities. Under the category of religious minorities we include: Jews, Copts, Maronites, Greek Orthodox, Greek Catholic, Latins, and Protestants. Under the subcategory of Islamic minorities, we look at: Alawites, Druze, Babism and the Baha’is, Ismailis, and Ahmadis. Majoritarian majorities are those who are numerically larger but excluded from sites of power, a category that includes the Shi ‛ a in Bahrain for instance. Relative size distinguishes what we refer to as political minorities. Like ‘majoritarian’ groups, political minorities are excluded from power but are also a minority in terms of relative numbers; these include Shi ‛ a in Saudi Arabia and Sunnis in Iran.

Finally, we detail what we refer to as ‘trapped’ minorities, as distinct from ethnic/national minorities. Th e term ‘trapped minority’ was fi rst introduced by an Israeli sociologist when examining the eff ects of ‘re-territorialization’ on the identity and consciousness of Palestinian citizens living within Israel. 20 We engage this concept in a broader arena, and defi ne it as a segment from a larger group spread across two or more states. Trapped minorities are marginalized, or in the case of Palestinian-Israelis, doubly marginalized, 21 subject to hegemonic control by others within these states and, as such, excluded from access to sociopolitical and economic decision-making institutions. In addition to Israeli Arabs, we include Palestinians, Baluchis, and Kurds. Palestinian refugees and exiles have undoubtedly shaped their ‘host’ countries. Similarly, the Kurds are spread across Turkey, Syria, Iran, and Iraq. Th eir desire to exercise some form of self-determination in each of these states has brought them into confl ict with all four states, with signifi cant impact in two of our case studies—Syria and Iraq. Finally, we include the Baluchi community, an ethnic and nomadic group that straddles three countries—Afghanistan, Iran, and Pakistan. In their struggle to establish an independent Baluchistan, they have felt the sharp end of respective state actions in each of these host states.

Chapters 4 to 6 undertake three specifi c country analyses—Iraq, Syria, and Lebanon. Th ese chapters will audit and analyse the historical and sociopolitical basis of identity formation within each of these states and how this is refl ected in the legal regimes and institutions in each jurisdiction. Th e use of a case-based approach conforms to the objective and the structure of volumes 1 and 2 of the Oxford University Press series on minority rights. In these earlier volumes, as in this particular book, the objective is to provide a general overview of the region

²⁰ See D Rabinowitz, ‘Th e Palestinian Citizens of Israel, the Concept of Trapped Minority and the Discourse of Transnationalism in Anthropology’ (2001) 24(1) Ethnic and Racial Studies 64–85.

²¹ Ibid 73–4, 76–7.

Introduction 7

and the salient issues that engage minority rights (Chapters 1 to 3) as well as to provide detailed insights into the judicial, legislative, and administrative policies adopted within specifi c states for the protection of minorities (Chapters 4 to 6).

Nonetheless, the inclusion (and therefore exclusion) of particular countries (and indeed minority groups) may ignite some debate. For example, the current political landscape most certainly invites a closer examination of the regional pulls of Iran and Saudi Arabia, and the ‘Arab spring’ suggests that perhaps Egypt or Tunisia merit a closer review. Th at said, the focus of our inquiry is on issues related to minority communities in what we acknowledge to be a construct rather than a cohesive region. Here, we argue, minority status is best understood by examining how sociopolitical groups engage (or are excluded from) various sites of power and we have selected states that tell us something about that relation- ship. In undertaking this approach, we challenge some of the conceptions of minorities in the region and as a consequence, some of the ‘exceptions’ that are often read into our understanding of intergroup relations in the Middle East.

In specifi cally selecting Iraq, Syria, and Lebanon, several factors came into play. Th ese states have shared borders (Iraq with Syria, and Syria with Lebanon) as well as the ‘borderlessness’ of historical narratives, experiences, and of social and cultural landscapes. Confl icts have also shaped and reshaped these states. Th e displacement of Palestinians and the contested territorial boundaries of Palestine have infl uenced both the demographics and the politics of Egypt, Jordan, Syria, and Lebanon. Th e Kurds too are spread across Turkey, Syria, Iraq, and Iran. For both Palestinians and Kurds, the struggle for self-determination rights has brought each into confl ict with one or more of our case studies. In the case of Syria and Iraq, the governments themselves have been reluctant to recognize or focus on the minority rights prob- lems that exist within their borders. 22 Th e political rhetoric of these states argues that minorities are protected, whilst the ‘on-the-ground’ facts of these minorities suggest a very diff erent scenario. To the extent that human rights have become politicized, the Middle East is unexceptional. In this regard, our case studies reveal that the language of human rights and its engagement within these political land- scapes is present, at least at the rhetorical and constitutional levels.

Whilst diffi culties emerge when accessing recognized and empirically credible sources engaging with minority rights in Asia, this diffi culty is accentuated when turning to the Middle East. Th ose trained in common law seek to understand such social issues through the lens of cases. Yet, relevant domestic case law often does not exist in the public domain, and law tends to be administrative, identify- ing systems and restraints, rather than rights-affi rming in nature. Perhaps most critically, in the cases we have chosen, there is either limited or no currently sourced empirical data that provides a forensic accounting of minority status within these states, a problem particularly acute in Iraq. Th is diffi culty was also

²² Th e rootedness of the identity politics in Iraq was exposed in the regime change in Iraq in 2003. In the autonomous areas of Kurdish Iraq, however, the idea that minority rights are protected (which is the government position) is contested.

Introduction8

acute in our overview of minorities in the region. Although we found reference to governmental as well as NGO and academic reports necessary at times, we were aware of the attendant diffi culties with sourcing, 23 accuracy, 24 and ques- tions of bias 25 and, to the extent possible, we confi ned our extraction from these sources. Also for a number of groups or states within our review, there is a limited scholarship and other secondary sources on the minority rights question. In some cases, such as in Iraq, the internal domestic situation and the need to address live confl ict issues have focussed attention on larger constitution-building exercises, which have marginalized or disregarded minority rights questions. Th is has made collection of information all the more urgent but, equally, all the more diffi cult.

To lessen the impact of some of these hurdles, the authors were able to benefi t from their prior engagement in the Middle East, both as academics and advo- cates. Th is experience was useful not just in helping to analytically frame our examination but, on a more practical level, provided access to networks and indi- viduals who were extremely helpful in providing information and critique. To this end, the authors would like to thank a number of colleagues, interns, and others who provided us with research support, insightful comments, commentaries, and good humour. In particular, we would like to thank Laura Deck, Michelle Farrell, Katie Hull, Siavash Iranparast, Benjamin Kastan, Chelsea Langston, William Lawrence, Susan Megy, Sundeep Mutgi, Baron Ojogho, Rebecca Pawul, Irene Pietropaoli, Yosef Schiff , David Vassallo, and Elizabeth Viole for their research and editing assistance. Particular thanks to Sawsan Al-Assaf, Laleh Khalili, Saad Jawad, Jillian Schwedler, and Ben White who kindly agreed to read sections of the book and provided critical guidance. Th e integrity of their work and generos- ity of their time were invaluable. With regard to in-country information on our case studies, both authors would like to thank Iman Abdulrahim, Roja Fazaeli, Jason Gluck, Kamran Hashemi, Orna Kohn, Carmi Lecker, Brendan O’Leary, Nelly Rihan, William Spencer, and Michael Youash for their guidance. Finally, the authors would also like to acknowledge the support given by our respective academic institutions, and particularly Orla Baxter (NUI, Galway). Whilst we have benefi ted enormously from these colleagues, any errors or limitations are the sole responsibility of the authors.

²³ Although, in most instances, it was possible to fi nd multiple literatures or reports on a particular group, many of these tended to draw from the same source(s).

²⁴ One of the few academic databases focussing on minority rights with which we engaged was the Minorities at Risk Project at the University of Maryland. However, most of their data on the Middle East and North Africa was dated (usually including information only up to December 2006).

²⁵ In particular, the US Commission on International Religious Freedom (USCIRF) has been crit- icized for its ‘ongoing preoccupation with Islamic law as an obstacle to religious freedom’, which has led to ‘an elaborate report on the treatment of religious freedom in constitutions in the Muslim world without publishing comparable studies on other parts of the world’. See AE Mayer, ‘Th e Fatal Flaws in the US Constitutional Project for Iraq’ (2007) 61(1) Journal of International Aff airs 153, 159. Such focus by USCIRF has, on the one hand, provided a consistent source of data on minorities in the Middle East that is otherwise either unavailable or dispersed, whilst, on the other, suggestions of bias on the part of USCIRF give rise to questions of impartiality in their reporting.

Th e Contemporary Middle East

Introduction

Th at the Middle East is ‘exceptional’ is often read into analyses of the history and politics of the region. Contemporary accounts of confl ict, religion, and human rights in the Middle East have been shaped by this perceived ‘exceptionalism’. Our point of departure is rather diff erent; as discussed in our opening section, the territorial ambit of the Middle East is an exogenous construct, based as much on imagination as on any fi xed boundary. What lies within this space is sometimes shared, often contested, but, most certainly, is as diverse and complex as most other regions in the world. Rather than exceptional, the political landscape of the Middle East is rather unremarkable. While confl ict is a part of the post-1945 landscape in the Middle East, we reject narratives that frame the Middle East in a ‘Hobbesian state of nature where war and confl icts are inevitable and endemic’. 1 A forensic accounting of strife suggests that the Middle East is no more or less confl ict ridden than other parts of the globe. Th e power struggles, both within and between states, and colonization are two factors that have so often under- pinned confl icts in the Middle East, but these are certainly not unique to this region.

Similarly, that religion has been used as a means of political mobilization, with ethnic politics serving as the outer layer, is characteristic of some of the confl icts that have engaged minority communities detailed in our second chapter. Th is ‘tac- tic’ of social mobilization is not, however, exclusive to the Middle East and fails to explain the underpinnings of confl ict there. Social movement theory, which partly endeavours to explain underpinnings of confl ict and the use of violence, has produced a number of scholarly studies that focus on the role of identity in tactical choice. 2 Tilly’s work suggests that the identifi cation of a particular group

¹ B Milton-Edwards and P Hinchcliff e, Confl icts in the Middle East since 1945 (2nd edn, Routledge, 2004) 1.

² Th is is particularly prevalent in the works of social movement theorists. See DS Meyer and S Tarrow (eds), Th e Social Movement Society (Rowman & Littlefi eld Publishers 2004); C Tilly, Th e Politics of Collective Violence (Cambridge University Press 2003).

Th e Contemporary Middle East10

creates boundaries or social divisions in the sense of ‘us’ versus ‘them’. 3 Tarrow has argued that ethnically based organizations serve as points of social mobilization, which can ferment into violent collective action where citizens are divided along ‘ethnic, religious or national cleavages’. 4 When a more rigorous unpacking of the underpinnings of confl ict in the Middle East is applied, fi ndings provide:

. . . no support of Middle Eastern exceptionalism regarding the causes of confl ict. Th ere is nothing mysterious or particular about confl ict in the Middle East or in Muslim countries. Confl ict is quite well explained by a general model of civil war . . . 5

Th e role of religion in public life in the Middle East intersects rather uneasily with an (ostensibly) secular but increasingly illiberal West. Writings that engage with human rights and Islam often reduce the estimated 1.5 billion global Muslim community to a monolith, with Islam read as a fi xed and dominant narrative. In section 3, we challenge the notion of an antithetical relationship between Islam and human rights. Th is is not to adopt a strict Th ird World reading of international law 6 or to graft a culturally relativistic approach to human rights. 7 Nor is it to submit to the ‘ambient noise’ 8 that often accompanies scholarly (and other) discourse on human rights in the Middle East. Rather, we endeavour to decode and reframe the language which suggests that the Middle East, as a broad concept, and Islam, as a particular fi xture within it, are somehow distinct from the larger debates that preoccupy most states. Our argument is that the emergent self-interests, which underpin the relationship between a state and its adherence to human rights norms, cannot, when applied to this specifi c political space, be seen as unique.

Across the geo-political landscape, state rhetoric and practice often diverge, with a gap between what human rights provisions are codifi ed in the constitution of a state and how they are actually applied in domestic practice. States in this region do not suff er unduly from this trend, nor does the practice (from light to heavy) of Islam weigh heavily on the degree to which this inconsistency is evident. Instead the role of Islam in public and political life, including through

³ Tilly (n 2) 32. ⁴ S Tarrow, Power in Movement: Social Movements, Collective Action and Politics (Cambridge

University Press 1995) 104. ⁵ ME S ö rli, NP Gledisch, and H Strand, ‘Why is Th ere So Much Confl ict in the Middle East?’

(2005) 49(1) Journal of Confl ict Resolution 141, 160. ⁶ Th is is a position that has been proff ered by a school of analytical thought known as Th ird World

Approaches to International Law (TWAIL). For more see A Anghie, B Chimni, et al, Th e Th ird World and International Order: Law, Politics and Globalization (Martinus Nijhoff 2003); A Anghie and B Chimni, ‘Th ird World Approaches to International Law and Individual Responsibility in Internal Confl icts’ (2003) 2 Chinese Journal of International Law 77; K Mickelson, ‘Rhetoric and Rage: Th ird World Voices in International Legal Discourse’ (1998) 16 Wisconsin International Law Journal 360; and A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2005).

⁷ For a well-cited critique of such an approach see J Donnelly, Universal Human Rights in Th eory and Practice (2nd edn, Cornell University Press 1993).

⁸ AE Mayer, Islam and Human Rights: Tradition and Politics (4th edn, Westview Press 2007) 25.

1 Th e Territorial Ambit 11

the application of Shar î’ ah in domestic law and its specifi c eff ect on minority communities, must be understood as law itself must be read; that is, it ‘cannot be divorced from its relationship to power’. 9

Trying to distil questions related to minority identity formation and minority status from larger political and historical projects necessitates that we deconstruct and challenge the ‘exceptions’ that are so often attached to the historical, politi- cal, and even legal analysis of the Middle East. When the Middle East is framed, as is often the case, as a violent and intolerant geography, questions of minority rights and status become the surface over which political and ideological battles are waged. Unpacking these questions, therefore, becomes a necessary fi rst step.

1 Th e Territorial Ambit

Th e ‘peculiarities of geography’ aptly describes the physical space that con- tains the Middle East. Unsurprisingly, there is no agreed defi nition of what this physical space of the Middle East or West Asia comprises. In purely physical terms, this is where Asia, Africa, and Europe meet. It has come to describe the space from Morocco eastward to Pakistan, and from Turkey southward to Sudan. Historically, this larger area has included Armenia, Azerbaijan, Cyprus, and Georgia, although, in each case, these states have shifted these ties to form strategic alliances elsewhere. Similarly, Turkmenistan, Kyrgyzstan, Tajikistan, Uzbekistan, Azerbaijan, Pakistan, and Turkey are part of this geographic region, but they share a diff erent political and ideological space: the Central Asian states sit uneasily between Asia and the Middle East and are increasingly described as Central Asia; Pakistan is often grouped with Asia, 10 and Turkey is increasingly defi ned as Eurasian, with sights fi rmly fi xed toward Europe. 11 Th is region, like others, has been shaped and defi ned by geo-politics, thus, what is understood as the modern Middle East often comprises more than a simple territorial unit. Rather, the term the ‘Middle East’ has an exogenous policy-contingent origin and evolution, derived directly from the European perspectives that have shaped contemporary global maps.

Th e coining of the term the ‘Middle East’ has been attributed to Alfred Th ayer Mahan, a US naval offi cer and strategist. In 1902, Mahan used this term to refer to the area between Arabia and India, i.e. the Persian Gulf. Framed in the context of state security, Mahan argued that in order to secure the route to India and guard against Russian intervention, Great Britain should assume responsibility

⁹ J Allain, International Law and the Middle East: Closer to Power than Justice (Ashgate 2004) 1. ¹⁰ Th is approach was taken in the fi rst volume in this series, J Castellino and E Dominguez

Redondo, Minority Rights in Asia: A Comparative Legal Analysis (Oxford University Press 2006), which included a brief analysis of Pakistan.

¹¹ For issues related to the accession of Turkey to Europe and its own battle of identity see E Hughes, Turkey’s Accession to the European Union. Th e Politics of Exclusion? (Routledge-Cavendish 2010).

Th e Contemporary Middle East12

for security in the Gulf region. Rather than a fi xed geographical territory, the term ‘Middle East’ was used as a ‘shifting strategic concept’, which marked the importance of this region as well as the challenges that would ensue as a result of the competition to wield infl uence in Asia between Russia and Britain. In the aftermath of World War I, Transjordan, Palestine, Iraq, Syria, and Lebanon came under the control of Britain and France and, as such, fell under the territorial ambit of the ‘Middle East’. At this juncture, the ‘Middle East’ did not just refer to the security of the region, but, as well, to the large oil resources in the area. For Great Britain and, later, for the US, which followed the British model, the ‘Middle East’ would, during World War II, come to describe the area covering all Asian and North African lands to the west of India. For both the US and Britain, the region was not only important for geo-strategic reasons but also for its tremendous oil reserves. Th e question of territorial make-up, or who would be included or excluded from the region, was of signifi cantly less concern at this time. Th is lack of concern began to change signifi cantly with the increasing number of Jewish settlers in Palestine and rose exponentially with the eventual establishment of the state of Israel in 1948. A review of the historical social for- mation of what is referred to as the Middle East therefore clearly suggests an exogenous construction, with little or no considerations for the civil societies that were captured within it. Rather, in recent history, the Middle East as a region so defi ned has become a proxy zone; discussions on security for the Middle East are usually articulated concerns for the security of Anglo-American interests in the region. 12

In light of this, it is unsurprising to fi nd that the exogenous policy-contingent origins of the ‘Middle East’, ‘this theatrical stage affi xed to Europe’ for which/ where ‘the audience, manager and actors are for Europe, and only for Europe’, 13 is contested with varying attempts to capture and redefi ne the term. In one of the earlier academic writings to engage the debate over whether there was actually a ‘Middle East’, Keddie argued against making the Middle East ‘a real historical entity’. 14 She concluded that this ‘strange’ term continued its longevity in the absence of another less ‘cumbersome’ but more ‘scientifi c’ designation. 15 Other critiques and endeavours to reframe would follow, some of which followed Arab nationalist discourse, underpinned by a desire to establish Arab unity. Mohammed Heikal, once adviser to Egyptian President Nassar and, at the time of his writing, editor of the Egyptian daily al-Ahram , proff ered the idea of an ‘Arab system’ based on the idea of a unifi ed religion, history, and culture. He argued that the ‘Middle

¹² Th is was highlighted during the Cold War when the policies of the United States and the United Kingdom in the Middle East were to prevent communism from gaining a foothold in the region by keeping it stable and this, in turn, implied keeping bases in the region.

¹³ E Said, Orientalism (fi rst published 1978, Penguin Books 2003) 63. ¹⁴ N Keddie, ‘Is Th ere a Middle East?’ (1973) IV International Journal of Middle Eastern Studies

255, 257. ¹⁵ Ibid 267.

1 Th e Territorial Ambit 13

East’ reduced those living within these constructed boundaries to the margins, in his words, ‘a hinterland laying between Europe and Asia, a mere geographical expansion’. 16 He posited that an Arab system would comprise ‘one nation having common interests and security priorities distinct from those of the West’. 17 His argument would serve as a point of departure for two other Egyptian writers, Ali Eddin Hellal Dessouki and Jamil Matar. In 1979, in an Arabic work entitled Th e Arab Regional System: An Examination of Inter-Arab Political Relations , Dessouki and Matar introduced the term ‘Arab regional order’ to replace the contested con- cept of the ‘Middle East’. According to Abdel Aal, the main points to Dessouki and Matar’s argument were:

(1) the term ‘Middle East’ does not refer to a geographical area but rather it represents a political term in its creation and usage;

(2) the term is not derived from the nature of the area or its political, cultural, civilizational and demographic characteristics, for when we use the term ‘Middle’, one has to ask ‘middle’ in reference to what?;

(3) the term tears up the Arab homeland as a distinct unit since it has always included non- Arab states. 18

Th e Arab Regional Order currently comprises all Arab states: Algeria, Bahrain, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine/PLO, Qatar, Saudi Arabia, Somalia, Sudan (though not South Sudan), Syria, Tunisia, Yemen, and the United Arab Emirates (UAE). Th e endogenous construction of the term, as one defi ned from within, had its obvious attractions. Th at said, its limitations stem from a failure to rec- ognize the distinct and impactful roles played by non-Arab states in the region, including Iran, Turkey, and, of course, Israel.

Another attempt to capture and redefi ne the ‘Middle East’ led to the use of the term ‘Mediterranean’. Th e term is not new, but has resurfaced periodically as an alternative regional conception, most recently, in the aftermath of the Cold War and in the wake of the fi rst Gulf War in 1991. Th e geographical space and area this term encompasses includes three continents—Europe, Asia, and Africa. More specifi cally, it includes the territory that borders the northwest sector of the Mediterranean within the European Union, the geographical area covering the south-eastern fl ank of the Mediterranean basin, labelled ‘the Middle East’, as well as the sub-regions of southern Europe, the Balkans, the Maghreb, and the Mashreq. Although vague as a notion, the attraction of using this term is that it is rela- tively uncontested. Nevertheless, rather than defi ning a region, the term remains a construct, a means of describing the engagement between European countries

¹⁶ M Heikal, ‘Egypt’s Foreign Policy’ (1978) 56 Foreign Aff airs 714, 719. ¹⁷ Ibid 719. ¹⁸ Abdel Aal (AMSA), ‘Th e Superpowers and Regional Security in the Middle East’ in M Ayoob

(ed), Regional Security in the Th ird World: Case Studies from Southeast Asia and the Middle East (Croom Helm 1986) 196, 197.

Th e Contemporary Middle East14

and Arab states, with no intrinsic merit to explaining any shared sociopolitical history and vision. 19

Recent historical events explain the economic and political alliances that have emerged in the Middle East, which are refl ected in our typology. Th e 1980s were signifi cant for the wider region since it signalled the end of the Cold War, the Iran–Iraq War and the commencement in earnest of an Arab–Israeli peace process. Th ese events impacted the political map of the Middle East and fostered fragmentation within the wider region along national lines. Similarly, the economic ties of states in the region have been the catalyst for a number of bilateral agreements that have weakened existing multilateral institutions including the Arab League. Eff orts to manage the protracted Israeli–Palestinian confl ict have seen alliances and divisions formed. Th e US intervention in Afghanistan and Iraq post 9-11 has signifi cantly impacted the regional landscape. Enmities and alliances have been reconfi gured, and the respective confl icts have ignited tran- snational actors in the region and beyond.

Th us, while there are specifi c and shared aspects of the space we broadly and rather precariously defi ne as the Middle East, we believe that the states we have grouped under this umbrella otherwise occupy a distinct political and geo- graphical terrain. Th e typology we have created divides these states along sev- eral fault lines: the oil-producing countries of Bahrain, Kuwait, Saudi Arabia, Oman, Qatar, UAE, and Yemen; the Fertile Crescent region of Israel/Occupied Territories, Jordan, Lebanon, and Syria; the North African countries of Algeria, Egypt, Libya, Morocco, and Tunisia; the sub-Saharan states, which are members of the League of Arab States of Sudan, Mauritania, Djibouti, Somalia, and the Comoros Islands, and, fi nally, the non-Arab states of Iran and Afghanistan.

2 Th e Crucial Peace and Security Questions

Th at confl ict has shaped and reshaped the Middle East is not contested. Th e unresolved Arab–Israeli confl ict and, within it, the specifi c Israeli–Palestinian confl ict has engendered instability and suggests that borders remain less than fi xed. Th at said, to read the underpinnings of confl ict in the Middle East as somehow fi xed, specifi c, and in contradistinction to that of other regions displays a lack of empirical and historical rigour. Exogenous factors such as colonization, Cold War rivalries, and post-Cold War power struggles have remained as central

¹⁹ Th is is evidenced by a number of EU dialogues and agreements with Arab States, cf bilateral cooperation agreements under the ‘Mediterranean’ policy; multilateral relations with all Arab states via the Euro–Arab dialogue (established in 1973); multilateral agreements with sub-regional organi- zations in the Middle East (Arab Maghreb Union; Gulf Cooperation Council; Arab League); to the Conference of Security and Cooperation in the Mediterranean (CSCM), and the Euro-Mediterranean process established by the EU at the European Council Meeting in Barcelona in 1995. For a general context of the EU’s foreign policy in the ‘neighbourhood’ see R Dannreuther (ed), European Union Foreign and Security Policy: Towards a Neighbourhood Strategy (Routledge 2004).

2 Th e Crucial Peace and Security Questions 15

to understanding the genesis of confl ict within this region as in other parts of the world. In contrast, we suggest that a more rational read of confl ict in the Middle East suggests that the ‘inevitability’ of confl ict in the region should be understood less in an ‘Orientalist’ light but rather that both endogenous and exogenous fac- tors have and continue to fuel inter- and intra-state tensions.

Confl ict in the Middle East takes two primary forms. First, there are the inter-state disputes such as those between Israel and Lebanon, 20 Iraq and Iran, 21 Iraq and Kuwait, 22 Saudi Arabia and Yemen, 23 Bahrain and Qatar, 24 Egypt and Libya, 25 Morocco and Mauritania, 26 and Jordan and Syria. 27 Th e second category is that of intra-state disputes including tensions and strife in Lebanon, 28 Iraq, 29 Syria, 30 Algeria, 31 Jordan, 32 Yemen, 33 and Oman. 34 When seeking to understand the genesis and dynamics of these confl icts, several factors emerge. Inter-state rivalries manifest in colonialism and failed statecraft and disputes over natural resources underpin some confl icts. Th e intersection of colonization and confl ict is also prevalent in ethno-nationalist confl icts. Here the strategic objectives of colonial powers—especially Britain and France—have left an indelible impact on communities that fell within artifi cially created borders. In particular, the legacy of Arthur Balfour remains a potent reminder of the catastrophic price of British intervention in the region. 35 As noted, the multiple and contested geog- raphies of the region, and borders that remain less than fi xed, lie at the heart

²⁰ See generally E Picard and F Philip, Lebanon, A Shattered Country: Myths and Realities of the Wars in Lebanon (Homes & Meier 1996).

²¹ See generally F Rajaee, Iran–Iraq War: Th e Politics of Aggression (University Press of Florida 1993).

²² See generally JM Long, Saddam’s War of Words: Politics, Religion and the Iraqi Invasion of Kuwait (University of Texas Press 2004).

²³ See generally AH Cordesman, Saudi Arabia: Guarding the Desert Kingdom (Westview Press 1997).

²⁴ See generally AH Cordesman, Bahrain, Omar, Qatar and the UAE: Challenges of Security (Westview Press 1997).

²⁵ See generally MN Barnett, Confronting the Costs of War: Military Power, State and Society in Egypt and Israel (University of Princeton Press 1992).

²⁶ See generally T Hodges, Western Sahara: Roots of a Desert War (University of California Press 1983).

²⁷ See generally RB Satloff , Troubles on the East Bank: Challenges to the Domestic Stability of Jordan (Praeger 1986).

²⁸ See generally N Shehadi and DH Mills, Lebanon: A History of Confl ict and Consensus (IB Taurus 1988).

²⁹ See generally GRV Stansfi eld, Iraq: People, History, Politics (Polity Press 2007). ³⁰ See generally JF Devlin, Syria: Modern State in an Ancient Land (Westview Press 1983). ³¹ See generally M Evans and J Phillips, Algeria: Anger of the Dispossessed (Yale University Press

2007). ³² See generally B Shwadran, Jordan: A State of Tension (University of Michigan/Council for Middle

Eastern Aff airs Press 1959). ³³ See generally J Schwedler, Faith in Moderation: Islamist Parties in Jordan and Yemen (Cambridge

University Press 2006). ³⁴ See generally M Valeri, Oman: Politics and Society in the Qaboos State (Hurst and Company

2009). ³⁵ See N Sickler, From Muhammad Ali to the British Mandate 1831–1922 (Praeger 1999).

Th e Contemporary Middle East16

of the Arab–Israeli dispute and of the Palestinian and Kurdish struggles for self determination.

Th is colonial ‘legacy’ would be signifi cant not only in terms of the border and intra-state disputes that arise from such arrangements but also, as Anderson argues, these new states and the obvious incongruence between territory and indigenous social formations required ‘reorientations in economic links, social relations and political loyalties’. 36 Tibi has argued that civil society responded to weaknesses in general governance, and more specifi c economic policy and social strategies of the emergent nation-states of the Middle East, by resorting to what he labels: ‘pre-national ties as a solution, thereby preserving the framework of the patron-client relationship’. 37 As examined later in this chapter, ethnic groups and ethno-religious groupings pre-date the formation of the nation-state in the Middle East. However, what is relevant in the advent of the nation-state system and the development that would follow is a shift in the accompanying socio- economic and political frameworks that would, rather paradoxically, reinforce these groupings while also bringing various ethnic and religious groups into direct competition with each other. Against these trends, the newly emerging regimes were endeavouring to consolidate power in a manner that would create cohesion and, therefore, undertook policies that eff ectively sought to suppress ethnic-based rights claims, which were seen as undermining the narrative for a unifi ed national identity. Th e experience of the Kurds is a case in point and one that has engaged three countries in the region—Iraq, Iran, and Turkey—in protracted confl ict.

Th e infl uence of external actors such as the Soviet Union and the US, in prop- ping up authoritarian regimes and, later, through overt and covert endeavours to ‘democratize’ and control domestic regimes and their natural resources, have concomitantly engendered domestic unrest and, in some cases, violent resist- ance. 38 External infl uence is also felt when assessing the increased militarization of the region. Th e build-up of signifi cant conventional and nuclear war chests has attracted the attention and, on occasion, merited interventions, regionally, by Israel in Syria 39 and externally, most recently, with the US intervention in Iraq and US engagement with Iran on its alleged nuclear armaments’ programme. 40

Th ere are a number of studies, regional and case-specifi c, which extensively examine the underpinnings of confl ict in the Middle East. 41 Our examination is

³⁶ T Niblock and R Wilson, Th e Political of the Middle East: Th e Role of the State (Edward Elgar 1999) 44.

³⁷ B Tibi, Islam and the Cultural Accommodation of Social Change (Westview Press 1990) 147–9. ³⁸ See generally S Heydemann, War, Institutions and Social Change in the Middle East (University

of California Press 2000). ³⁹ See e.g. R Hinnebusch, Syria: Revolution from Above (Routledge 2001) and M Ma’oz, Syria and

Israel: From War to Peacemaking (Clarendon Press 1995). ⁴⁰ See S Khan, Iran and Nuclear Weapons: Protracted Confl ict and Proliferation (Routledge 2010). ⁴¹ To this end, see F Halliday, Th e Middle East in International Relations: Power, Politics and Ideology

(Cambridge University Press 2005); E Solingen, ‘Pax Asiatica versus Bella Levantina: Th e Foundations

2 Th e Crucial Peace and Security Questions 17

much more limited to those that inform our discussion on decolonization, where confl icts erupted such as in Lebanon; where minorities featured signifi cantly in the confl ict, as in the Iraq–Iraq and Arab–Israeli/Palestinian–Israeli confl ict; or in the context of the ‘war’ on terror, where there has been an attempt to reframe the narrative on local and discreet confl icts in the region. As a number of these confl icts are relevant to a group or to our case studies we return to them in sub- sequent chapters. In the remainder of this section, three confl icts are examined briefl y—the protracted Arab–Israeli, the related Israeli–Palestinian confl ict, and the post 9–11 ‘war on terror’—that have dominated the political landscape of the Middle East and raised cogent peace and security issues.

2.1 Th e Arab–Israeli confl icts

Reference to the Arab–Israeli confl ict inevitably gives rise to a focus on the Israel– Palestinian question and dispute. Whilst the Palestinian question looms large in Arab–Israeli relations, other issues have added diff erent dimensions to the dispute and, in some cases, eclipsed the Palestinian question. We briefl y examine some of the confl icts that have engaged Arab states, specifi cally the wars of 1948, 1967, 1973, 1982, and 2006 42 and the attempts at peace with the 1979 Egyptian– Israeli peace agreement 43 and the 1994 peace treaty between Jordan and Israel. 44 We note here, and in our subsequent section on the Israeli–Palestinian confl ict, that any attempt to deliver a historical record or even to set a context within which the minorities in the region can be assessed is fraught with diffi culty. Yet, the armed confl icts that have arisen from competing claims to this territory, and the myriad of issues that have accompanied this ‘unsettled state’, dominate the political landscape in the region and raise important minority rights questions. Understanding the debate around Palestinian identity and the minority status of the Diaspora Palestinian communities in the region and within Israel itself

of War and Peace in East Asia and the Middle East’ (2007) 101(4) American Political Science Review 757–80; B Miller, ‘Balance of Power or the State-to-Nation Balance: Explaining Middle East War Propensity’ (2006) 15(4) Security Studies 658–705; A Norton, ‘Th e Puzzle of Political Reform in the Middle East’, in L L’Estrange Fawcett (ed), International Relations of the Middle East (Oxford University Press 2005) 131–48; M Hudson, Arab Politics: Th e Search for Legitimacy (Yale University Press 1977) esp 1–30; L Wedeen, Ambiguities of Domination: Politics, Rhetoric, and Symbols in Contemporary Syria (University of Chicago Press 2000) esp 1–66; S Murden, Islam, the Middle East and the New Global Hegemony (Lynne Reiner 2002) 155–83; S Fish, ‘Islam and Authoritarianism’ (2002) 55 World Politics 4–37; also W Cleveland, Th e Contemporary Middle East (Westview Press 2006); W Cleveland, History of the Modern Middle East (2nd edn, Westview Press 2000).

⁴² For a background reading on these confl icts see JL Gelvin, Th e Israel–Palestine Confl ict: One Hundred Years of War (Cambridge University Press 2007).

⁴³ Th e 1979 Egypt–Israel Peace Treaty (Heskem HaShalom Bein Yisrael LeMitzrayim) was signed in Washington DC on 26 March 1979, following the 1978 Camp David Accords.

⁴⁴ See Treaty of Peace between the Hashemite Kingdom of Jordan and the State of Israel (Wadi ‘Araba) 26 October 1994.

Th e Contemporary Middle East18

requires an understanding of the confl icts (Arab–Israeli/Israeli–Palestinian), how- ever precarious the terrain.

Th e origins of the Arab–Israeli dispute can be found in ‘the resistance mounted by the Arabs and their leaders in the region against the initial attempts by set- tler Zionists, most of whom were immigrants from Europe, to build a state in Palestine’. 45 In their overview of confl icts in the region, Milton-Edwards and Hinchcliff e argue that the dispossession of Palestinians that would follow as a result of ‘forces of imperialism and colonialism’ would sow seeds for the emer- gence of the confl icts’ ‘wider dimension’. 46

Th e changing political and geographical landscape that would usher in the twentieth century placed Palestine at the centre of competing interests and ter- ritorial claims. Th e slow disintegration of the Ottoman Empire and the interven- tion of colonial powers, notably Britain and France, set the backdrop for indirect and direct colonial rule. 47 Th e British played a signifi cant role in Palestine. British intervention began in 1919 but its involvement in its aff airs dates earlier. 48 Much has been written about the duplicity of British policy in Palestine during World War I, revealed through two separate promises: the fi rst to Arab states promis- ing support for the establishment of an independent state in exchange for alli- ance with France and Britain against the Ottoman Empire, 49 and the second, a declaration issued in 1917 by British Foreign Minister, Lord Arthur Balfour (the Balfour declaration), which declared British government support for ‘a Jewish national home in Palestine’. 50 In addition, Britain and France concluded a separate agreement, which divided control of the Arab provinces of the Ottoman Empire between each state. 51

In the wake of World War I, the League of Nations conferred authority in the form of mandates to Britain, over territory now comprising Israel, the West Bank and Gaza Strip and Jordan, and to France, over greater Syria, including over what

⁴⁵ Milton-Edwards (n 1) 11. ⁴⁶ Ibid. ⁴⁷ See generally FM Gocek, Th e Rise of the Bourgeoisie, Demise of Empire: Ottoman Westernization

and Social Change (Oxford University Press 1996). Also see D Goff man, Th e Ottoman Empire and Early Modern Europe (Cambridge University Press 2002).

⁴⁸ For a historical backdrop to British intervention in Palestine see WR Polk, DM Stamler, and E Asfour, Backdrop to Tragedy: Th e Struggle for Palestine (Beacon Press 1957).

⁴⁹ Th is secret correspondence sent during World War I (1915–16) between the British High Commissioner in Egypt, Sir Henry McMahon, and Husayn ibn ‘Ali, the patriarch of the Hashemite family and Ottoman governor of Mecca and Medina, shows McMahon promising Husayn the back- ing of the British government for the establishment of an independent Arab state under Hashemite rule in the Arab provinces of the Ottoman Empire, including Palestine. In the end, the Arab revolt (which was led by TE Lawrence and Husayn’s son Faysal) succeeded. Th e Ottomans were defeated and Britain would subsequently assume control, during World War I, over much of the region.

⁵⁰ Th e Balfour Declaration (London: Foreign Offi ce, 2 November 1917) reprinted in A Gerson, Israel, the West Bank and International Law (Frank Cass 1978) 246–52.

⁵¹ Th is constituted the Anglo–French Sykes–Picot Agreement of 16 May 1916. For more see E Kedourie, In the Anglo-Arab Labyrinth (Cambridge University Press 1976) 159–84.

2 Th e Crucial Peace and Security Questions 19

later emerged as Lebanon. 52 In 1921, Britain divided control of the region into two parts—Emirate of Transjordan and the Palestine Mandate—divided east and west respectively by the Jordan River. 53

Th e failure by the British to fulfi l promises of an Arab state coupled with increased immigration by European Jews accompanied by land purchases 54 sparked clashes in 1920 and 1921 between Arabs and Jews. 55 Against the back- drop of British colonial rule and challenges posed by the tide of Jewish immi- gration, viewed by Arabs as encroachment on their dominance and position in the region, confl ict was inevitable. Disputes between Arabs and Jews centred on ownership and usufruct rights concerning communal religious sites in 1928 and 1929 led to communal violence and deaths. 56

Hitler’s accession to power in Germany in 1933 accelerated Jewish immigra- tion and accompanying land purchases. 57 Competing claims to establish hegem- onic control in the area led to the Arab revolt of 1936–39. 58 Whilst the British, together with Zionist militias and Arab regimes in neighbouring countries, suc- cessfully crushed the revolt, these events did serve as a catalyst for a White Paper that outlined a new policy to limit Jewish immigration and land purchases in Palestine. 59 Zionists argued that this revised British position undermined the Balfour Declaration. 60 Even if not read in that light, at an increasingly desperate time for Jews, the move ended the British–Zionist alliance. Th e severed alliance could have provided an opportunity for Palestinians to re-establish control but the defeat of the Arab revolt accompanied by the exile of Palestinian leadership left civil society in Palestine fragmented and demobilized.

⁵² For a general assessment of the role of mandates on governance see JA Andrews, ‘Th e Concept of Statehood and the Acquisition of Territory in the Nineteenth Century’ (1978) 94 LQR 408–27.

⁵³ See Sickler (n 35) 139–66. ⁵⁴ During this period, the Jewish National Fund purchased large tracts of land from absentee Arab

landowners. Th ose Arab tenants living in these areas were subsequently displaced. ⁵⁵ For US President Truman’s statement on this issue see ‘Immigration into Palestine—Statement

by President Truman, 4 October 1946’ Department of State Bulletin of 13 October 1946, 669–70. Some of the background issues to this, albeit from a planning law perspective are described as a ‘crisis’ and are analysed in R Alterman, Planning in the Face of Crisis: Land Use, Housing and Mass Immigration in Israel (Routledge 2002).

⁵⁶ Th ese clashes centred around the Wailing Wall, which is one of the holiest sites for Jews, and is adjacent to the Temple Mount, the holy site for Muslims of al-Aqsa Mosque and the Dome of the Rock, which is the spot where it is believed the Prophet Mohammed ascended to heaven. In August 1929, these clashes escalated and spread to other parts of the country when members of the Betar youth movement raised a Zionist fl ag over the Wailing Wall. Fearing that their sanctuary was in dan- ger, Arabs reprised by attacking Jews in other parts of the country.

⁵⁷ See generally, GR Kieval, Israel, Land of Tradition and Confl ict (Westview Press 1993). ⁵⁸ For more on the Arab revolt see J Kimche and D Kimche, A Clash of Destinies: Th e Arab–Jewish

War and the Founding of the State of Israel (Praeger 1960). ⁵⁹ See HMSO, Palestine Statement of Policy by HM Government in the UK (October 1930, Cmd

3692, Wrapps 23pp). Also see ‘White Paper on Partition’ HMSO, Palestine Statement of Policy by HM Government in the UK (July 1937, Cmd 5513, 3pp).

⁶⁰ See generally A Shlaim, Th e Politics of Partition, 1921–1951: King Abdullah, the Zionists, and Palestine (Oxford University Press 1998).

Th e Contemporary Middle East20

In the wake of World War II Britain found itself in an increasingly untenable position, which prompted a secret decision by the Cabinet on 20 September 1947 to relinquish its mandate over Palestine. 61 While the offi cial termina- tion would not transpire until months later, the fate of the territory was left to the United Nations, which established an 11-member Special Committee on Palestine (UNSCOP). 62 Th e Committee was divided on a number of issues, but nonetheless concluded that the only way to accommodate the demands of both Palestinian and Jewish communities would be to divide territorial control. 63 In 1947 the UN General Assembly voted to partition Palestine into a Jewish and an Arab state. 64 Th e composition of each territory was based on demographics: each state possessing a majority population of Jews and Arabs with Jerusalem and Bethlehem to be designated ‘international zones’. 65

Th e UN plan drew a mixed response. Zionist leaders publicly accepted the proposal, though privately expressed that this was a stepping-stone to a larger Jewish state. 66 Palestinian Arabs and Arabs from other states rejected the plan outright. 67 Th eir objections took a number of forms; some believed the actual territory allotted to Palestinian Arabs (55 per cent for Jews and 43 per cent for Palestinian Arabs) 68 was too small, while others argued that the idea of a Jewish state should not be entertained at all. 69

Th e UN Plan never took eff ect as fi ghting ensued between Arab and Jewish residents of Palestine soon after its adoption. In the early stage of the confl ict, the outcome of the civil war was not cemented. 70 Zionist military forces were smaller but signifi cantly better organized and armed than their Arab counterparts. Th e arrival of a shipment of arms from Czechoslovakia in April 1948 changed the dynamics of the confl ict in favour of Israel. 71 With the infl ux of arms, Israeli forces were able to acquire additional territory beyond that envisaged by the UN

⁶¹ See B Morris, Th e Birth of the Palestinian Refugee Problem, 1947–1949 (Cambridge University Press 1988) 183.

⁶² For the backdrop to this see R El-Eini, Mandated Landscape: British Imperial Rule in Palestine 1929–1948 (Routledge 2006) 365–79. Also see Palestine: Termination of Mandate, 15th May 1948— Statement Prepared for Public Information by the Colonial Offi ce and Foreign Offi ce (HMSO 1948).

⁶³ See El-Eini (n 62) 365. ⁶⁴ See ‘Future Government of Palestine’ UN Doc A/Res/181/A-B (29 November 1947). ⁶⁵ Ibid Chapter II. From the perspective of this volume this chapter is of particular interest since it

is labelled ‘Religious and Minority Rights’. ⁶⁶ See Shlaim (n 60) 80ff . ⁶⁷ See P Bennis, ‘Th e United Nations and Palestine: Partition and its Aftermath’ (1997) 19(3) Arab

Studies Quarterly 47. ⁶⁸ See UN General Assembly Resolution 181, 29 November 1947. ⁶⁹ For more on these objections, which were already framed pre-partition see generally, HL

Weisman, Th e Future of Palestine: An Examination of the Partition Plan (Lincoln Printing Company 1937).

⁷⁰ Morris notes that between December 1947 and March 1948, the ‘Arabs held the initiative’. See Morris (n 61) 196.

⁷¹ For a military assessment of this war see C Hayhurst, Israel’s War of Independence (Rosen Publishing Group 2004).

2 Th e Crucial Peace and Security Questions 21

partition plan and, by April of 1948, gained control of most of the Jewish ter- ritory allotted under the UN partition plan. 72 Th ese actions led to British with- drawal from Palestine, and, on 15 May 1948, the state of Israel was declared by Zionist leaders. 73 Adjoining Arab states—Egypt, Syria, Jordan, and Iraq—with territorial designs of their own, invaded Israel. 74

Th e hostilities abated in 1949 with an armistice agreement between Israel and Arab states. 75 Th is armistice divided the territory into three separate entities, 77 per cent controlled by Israel and the remaining territory divided between Jordan and Egypt. East Jerusalem and what is now referred to as the West Bank was under Jordanian control, while Egypt took control of the Gaza Strip. Th e end of overt hostilities signalled the commencement of a fragile peace, as Israel and adjoining Arab states continued to militarize. Th e confrontation in 1956 over Suez was therefore inevitable. 76 Israel, with France and Britain, attacked Egypt ostensibly as a result of its nationalization of the Suez Canal previously under French and British control. 77 During this confrontation, Israel gained control over Gaza and the Sinai. Th e occupation was short-lived as Israel yielded under UN pressure and retreated to the armistice line. 78 Although this concerted UN eff ort was supported by the US and the Soviet Union, the cooperation proved temporary as the region became enveloped in a Cold War battle for hegemonic control.

Th e backdrop to the 1967 confl ict remains contested. What has been docu- mented is that the Soviet Union, either through faulty intelligence or deliber- ate misinformation, relayed information to the Syrian government that Israeli forces were preparing to attack. 79 Although the intelligence would prove false (no troops were amassing in northern Israel), Israeli elite rhetoric had previously

⁷² Ibid 28ff . ⁷³ See Declaration of the Establishment of the State of Israel (Tel Aviv: 14 May 1948). A copy of

declaration is available on the offi cial site of the Israeli Ministry of Foreign Aff airs <http://www.mfa. gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Establishment+of+State+ of+Israel.htm> accessed 3 August 2011.

⁷⁴ See E Karsh, Th e Arab–Israeli Confl ict: Th e 1948 War (Rosen Publishing Group 2002). Also see W Khalidi, ‘Th e Arab Perspective’ in WR Louis and RS Stookey (eds), Th e End of the Palestine Mandate (University of Texas Press 1986) 121.

⁷⁵ Th e armistice agreement takes the form of two separate documents: Egyptian–Israeli General Armistice Agreement, 24 February 1949 and UN Doc S/1264/Rev 1, 13 December 1949. For entry into force, see Article XII; and Lebanese–Israeli General Armistice Agreement, 23 March 1949, UN Doc S/1296/Rev. 1, 8 April 1949. For entry into force, see Article VIII(1).

⁷⁶ See B Morris, Israel’s Border Wars 1949–1956: Arab Infi ltration, Israeli Retaliation and the Countdown to the Suez War (Clarendon Press 1997).

⁷⁷ For the politics behind this intervention see O Almog, Britain, Israel and the United States, 1955–1958 (Frank Cass 2003).

⁷⁸ For the legal issues underpinning these borders see J McHugo ‘Resolution 242: A Legal Reappraisal of the Right-Wing Israeli Interpretation of the Withdrawal Phase with reference to the Confl ict between Israel and the Palestinians’ (2002) 51(3) ICLQ 851.

⁷⁹ See AH Cordesman, Israel and Syria: Th e Military Balance and the Prospects of War (Greenwood Publishing 2008).

http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Establishment+of+State+of+Israel.htm

Th e Contemporary Middle East22

threatened action if ‘Syrian terrorists continued sabotage raids inside Israel’, 80 which prompted Syria’s request for assistance from Egypt in halting what it believed was an imminent attack. 81 In May 1967, Egyptian troops entered the Sinai bordering Israel, and, after a request for the evacuation of UN observer forces stationed on the border, Egypt took control of Sharm al-Shaykh and announced a blockade of Port Eilat, an Israeli port on the Gulf of Aqaba. 82 Th e Egyptians claimed that access to Eilat was through Egyptian territorial waters. Morris noted that in the lead-up to the Six Day War, the delayed response by the government mixed with a feeling of ‘irresolution’, engendered a fear within Israeli civil society that a ‘second holocaust was a defi nite possibility’. 83

While diplomatic attempts at resolving the crisis were ongoing, Israel engaged in pre-emptive strikes on 5 June 1967, destroying the grounded air forces of Egypt and then Syria, Iraq, and Jordan. Israeli military capability was dominant and, within six days, Israeli forces infl icted a decisive defeat, capturing Gaza and Sinai from Egypt, the West Bank from Jordan and the Golan Heights from Syria. 84 Th e ‘Six Day War’, had three immediate eff ects: it established Israel as a military power in the region, discredited the military capabilities of the Arab regimes, and led to the emergence of the Palestinian Liberation Organization (PLO) as a signifi cant political and military actor in the region. 85

Th e next Arab–Israeli confrontation in 1973 can be understood, in part, as an attempt by Egypt and Syria to reclaim land lost during the 1967 war. A failed diplomatic attempt by Egypt to claim back the Sinai in 1970 set the stage for a military confrontation. In October 1973, Egypt and Syria launched an attack on Israel in the Sinai and Golan Heights. Th e off ensive took place on the Jewish holy day of Yom Kippur. Egypt and Syria made initial military gains; however, US intervention thwarted any substantial gains. US diplomatic initiatives under then Secretary of State, Henry Kissinger, achieved agreement to partial Israeli withdrawals from the Sinai and Golan Heights. 86 No progress was made towards an overall Arab–Israeli settlement, which would have needed to address the sta- tus of the West Bank and Gaza. What was achieved, however, was a substantial increase in US military aid to Israel. 87

⁸⁰ Morris (n 61) 304. ⁸¹ For a rather one-sided account of these issues see M Shemesh, Arab Politics, Palestinian

Nationalism and the Six Day War: Th e Crystallization of Arab Strategy and Nasir’s Descent to War, 1957– 1967 (Sussex Academic Press 2008).

⁸² See T Draper, Israel and World Politics: Roots of the Th ird Arab–Israeli War (Viking Press 1968) 11–19.

⁸³ Morris (n 61) 308. ⁸⁴ For the military aspect see R Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo:

Operational and Legal Issues in Practice (Cambridge University Press 2007) 65. ⁸⁵ For an Israeli perspective of the impact see generally SJ Roth, Th e Impact of the Six Day War: A

Twenty Year Assessment (University of Michigan Press 1988); also see R Parker (ed), Th e Six Day War: A Retrospective (University of Florida Press 1996).

⁸⁶ For American foreign policy vis- à -vis Israel see H Druks, Th e Uncertain Friendship: Th e US and Israel from Roosevelt and Kennedy (Greenwood Publishing 2001).

⁸⁷ See B Reich, Securing the Covenant: United States–Israel Relations After the Cold War (Praeger 1995).

2 Th e Crucial Peace and Security Questions 23

Although a regional Arab–Israeli settlement remained elusive, in 1977 Anwar Sadat began a series of diplomatic initiatives, including a trip to Jerusalem that culminated in a separate Egyptian–Israeli peace treaty in 1979 brokered at Camp David by then US President, Jimmy Carter. 88 Th e long and fraught negotiations culminated in the Israeli withdrawal from Sinai in return for, amongst other concessions, Egypt’s recognition of Israel and the unimpeded passage of Israeli ships through the Suez.

Israel’s troubled relationship with Lebanon and its invasion in 1982 had, as Morris noted, deep historical roots. 89 Israel’s fi rst incursion into southern Lebanon came in March of 1978. 90 Th e PLO was active in southern Lebanon, using it as a base to launch attacks into northern Israel. 91 Th e Israeli Defence Forces (IDF) invaded in an attempt to destroy this base to create a corridor between Christian- held areas on the Lebanese border and Israel. In response to the incursion, the UN Security Council passed Resolution 425 creating the United Nations Interim Force in Lebanon (UNIFIL) to operate between the zone and Litani. 92 UNIFIL’s mandate was to demilitarize the area and ensure eventual Israeli withdrawal. 93 It had limited success; the PLO continued to operate, although UNIFIL’s presence did signifi cantly curb its freedom to act. Similarly, Israel retained a presence in Lebanon but its operations north of the security zone were curtailed.

Between 1975 and 1982, Israel forged an alliance with Lebanese Christian groups as one strategy against the PLO. 94 Th e most notorious of these was IDF aid to the Maronite Phalange militia. Yet, despite Israel’s dominant military capa- bilities, which far outweighed the PLO, and its bolstering of Christian and other militia, Israel was unable to halt the PLO off ensive. Against this backdrop, in the summer of 1981, Israel began to plan the invasion of Lebanon with objectives to move much further into Lebanon than had been attempted in earlier endeavours. 95 In June 1982, Israel launched a second incursion into Lebanon. Th e stated objec- tive, to remove the PLO infrastructure in Lebanon, was just one layer of several other goals, namely, ‘to crush the PLO and drive its remnants out of Lebanon; to push the Syrians out; and to install a pro-Israeli government’. 96 Despite protests

⁸⁸ See S Telhami, ‘From Camp David to Wye: Changing Assumptions in Arab–Israeli Negotiations’ (1999) 53(3) Th e Middle East Journal 379; and JA Lefebvre, ‘Historical Analogies and the Israeli– Palestinian Peace Process: Munich, Camp David and Algeria’ (1994) 3(1) Middle East Policy 84.

⁸⁹ See B Morris, Righteous Victims: A History of the Zionist–Arab Confl ict 1881–2001 (Vintage Books 2001) 494–560.

⁹⁰ See LL Whetten ‘Th e Military Dimension’ in PE Haley and LW Snider (eds), Lebanon in Crisis: Participants and Issues (Syracuse University Press 1979) 89–90.

⁹¹ Th ere were frequent attacks between 1977 and 1981 by the PLO into Israel’s northern border with IDF retaliation by air, sea, and, as noted, frequent incursions into southern Lebanon.

⁹² See S C Res 425 (1978) 19 March 1978. ⁹³ See UN Secretary General’s Report UN Doc S/12611 (19 March 1978) Offi cial Records of the

Security Council, Th irty-Th ird Year, Supplement for January, February, and March, 1978. Also see S Res 426 (1978) 19 March 1978.

⁹⁴ See JK Cooley, ‘Th e Palestinians’ in Haley and Snider (n 90) 34ff . ⁹⁵ Known as little pines/big pines. See Morris (n 61) 510. ⁹⁶ Morris (n 89) 519.

Th e Contemporary Middle East24

from the UN expressed in Security Council Resolution 509, 97 and the real pos- sibility of the confl ict drawing in Syria, Israel pressed ahead. In part, the off ensive proved successful in that, by August 1982, under an American-brokered plan, the PLO was eff ectively evacuated from Lebanon. 98 Several adjoining states accepted refugees fl eeing this war, in an eff ort to halt an increasingly aggressive IDF cam- paign in Lebanon. 99 While the IDF launched a successful military and strate- gic campaign in the summer of 1982, from 1982–1985, the fortunes would be reversed. With the assassination of the Lebanese Maronite and pro-Israeli politi- cian, Bashir Gemayel, Syrian engagement in Lebanon proved successful ‘with the IDF, for the fi rst time in its history, suff ering a clear and painful defeat’. 100 Ariel Sharon’s initiative to capture West Beirut in the wake of Gemayel’s death, and the events that led to the massacre of Palestinians in the Sabra and Shantilla refugee camps, 101 triggered public soul-searching within Israeli civil society that trans- formed into a sustained protest against the war. Under American pressure, Israeli troops withdrew from Beirut, to positions held before the September incursion, but would maintain a presence in southern Lebanon for the next 18 years. 102

2.2 Th e Palestinian–Israeli confl ict

Th e confl ict in Israel/Palestine is a ‘meta-confl ict’; that is, it is both a protracted confl ict between two peoples and a confl ict about the nature of the confl ict itself. Th is is common in deeply divided societies, where people hold fundamentally opposing opinions on the nature and causes of confl ict. 103 Every historical event, every mark in history, is accompanied by interpretations of causes, perceptions as to why events happened, and even precisely what has happened; some have labelled this the Rash ô mon eff ect. 104 Th e following is an attempt to highlight the

⁹⁷ S C Res 509 (1982) 6 June 1982. ⁹⁸ Its headquarters would be re-established in Tunisia until Arafat’s return to Palestine on 1 July 1994. ⁹⁹ See SK Lischer, Dangerous Sanctuaries: Refugee Camps, Civil War and the Dilemmas of

Humanitarian Aid (Cornell University Press 2006) 26–30. ¹⁰⁰ Morris (n 89) 540. ¹⁰¹ Between 16 and 18 September, Lebanese Phalangist militia entered the Sabra and Shatila refu-

gee camp and killed Palestinian civilians. Th e numbers of those killed have been disputed and range between 300 and 3,000. Whilst the IDF did not enter the camps or participate in the killings, an Israeli government-appointed review of the events by the Kahan Commission found the IDF and Israel to be indirectly responsible for the deaths. Whilst Begin and Shamir were rebuked, the weight of the Commission’s blame fell to Sharon who the Commission noted was ‘remiss in his duties’. See Th e Kahan Commission Report (7 February 1983) reprinted in W Lacquer and B Rubin (eds), Th e Israel–Arab Reader: A Documentary History of the Middle East Confl ict (7th edn, New York: Penguin Books 2008) 269. ¹⁰² See RO Freedman (ed), Th e Middle East after the Israeli Invasion of Lebanon (Syracuse University

Press 1986). ¹⁰³ For example B O’Leary and J McGarry (eds), Th e Politics of Ethnic Confl ict Regulation: Case

Studies of Protracted Ethnic Confl ict (Routledge, 1993) and M Heiberg, B O’Leary and J Tirman (eds), Terror, Insurgency and the State: Ending Protracted Confl ict (University of Pennsylvania Press 2007). ¹⁰⁴ See C Davenport, Media Bias, Perspective and State Repression: Th e Black Panther Party

(Cambridge University Press 2009). Here Davenport’s reference to the Rash ô mon eff ect derives from

2 Th e Crucial Peace and Security Questions 25

major events that have led to the current crisis in the region and to provide some context in which to understand current events. It is not off ered as a defi nitive account of these events, which is outside the scope of this volume.

As indicated above, Palestine was divided into three parts in the wake of the 1948–49 Arab–Israeli confl ict. 105 Although the UN plan proposed that Jerusalem become an independent zone, free from both Arab and Jewish control, the 1949 Armistice divided the city into halves—one controlled by Jordan, the other by Israel. 106 Rather than quell, the divided control exacerbated tensions in the area. Th e 1948 war that led to the creation of the State of Israel also created a Palestinian Diaspora, as over one million Palestinians fl ed or were expelled, most settling in Jordan. 107

In 1964, the PLO was founded as an umbrella organization for both political and military Palestinian groups struggling to regain Palestinian control over pre- 1948 Palestine. 108 A few years later, in 1967, the decisive victory of Israel over its neighbouring Arab states (Egypt, Syria, and Jordan) secured Israel’s control over all of Palestinian territory including West Bank and Gaza, 109 and the annexation of East Jerusalem that quickly followed. 110 Israel also captured the Golan Heights from Syria and the Sinai Peninsula from Egypt. Th ese events had two primary consequences. First, the ignominious Arab defeat served to ebb the growth of pan-Arab nationalism underpinned by the political ideologies of Nassirism and Ba‛thism. Secondly, the PLO emerged as a key player in the region.

A November 1977 visit to Jerusalem by sitting US President, Carter, marked the beginning of the Camp David peace process. 111 President Carter’s mediating eff orts between Israeli Prime Minster, Menachem Begin, and Egyptian President, Anwar Sadat, resulted in two agreements called the Camp David Accords . 112 Th e fi rst provided a framework for peace between Egypt and Israel, and the second

a 1950 fi lm by Akira Kurosawa in which one event is witnessed by three diff erent persons, all of whom see it from a diff erent perspective. Davenport has adopted this term (and we apply it here) to the tendency for events to be perceived and reported in diff erent ways, depending on who is telling the story and to whom and how this relates to violence, protest, repression, and peace. ¹⁰⁵ See n 75. ¹⁰⁶ See B Kimmerling and J S Migdal, Palestinian People: A History (Harvard University Press 2003)

431. ¹⁰⁷ Th e number of Palestinians living in Jordan is estimated at 1.3 million. Other Palestinians set-

tled in Lebanon, Kuwait, and Syria. Only Jordan has granted Palestinians citizenship. ¹⁰⁸ Yasir Arafat, leader of Fatah (the largest of these groups), emerged as Chairperson of the PLO in

1968. ¹⁰⁹ Since 1967, these two areas have been referred to as the ‘Occupied Territories’. ¹¹⁰ On 28 June 1967, the Israeli Interior Minister extended Israeli law to East Jerusalem and

extended Jerusalem’s municipal boundaries by 28 miles. Whilst Israel maintains that this did not constitute an annexation, the international community has regarded the administrative and legal extension of Israeli rule to East Jerusalem as constituting a de facto annexation. It later reaffi rmed this annexation in 1981. ¹¹¹ See Camp David Frameworks for Peace (17 September 1978) reprinted in Lacquer and Rubin

(n 101) 609–14. ¹¹² See Camp David Accords, 17 September 1978, reprinted in Dept State Bull, October 1978, at 7.

Th e accords consist of (1) Framework for Peace in the Middle East, reprinted at 7–9, and (2) Framework

Th e Contemporary Middle East26

was a broader framework intended to resolve the Palestinian question. Only the Egyptian–Israeli agreement took eff ect.

Th e Palestinian movement found renewed impetus with a popular uprising against the occupation, or intifada , which began in the West Bank and Gaza in December 1987. 113 During a speech in 1988, Yasir Arafat endorsed the ‘two state’ solution proff ered by UN Resolution 242, 114 and proclaimed the State of Palestine while accepting Israel’s own right to exist. 115 Meanwhile, the inti- fada was met by repressive Israeli measures resulting in renewed support for Palestinian paramilitary groups. By 1990, Israel had confi scated over 52 per cent of the West Bank and 30 per cent of the Gaza Strip for military use or for Jewish settlements. 116

Th e Palestinian question was the focus of negotiations undertaken in Oslo, Norway, which culminated in the Declaration of Principles on Interim Self- Government Arrangements for Palestinians (DOP), 1993. 117 Th e agreement negotiated by the PLO with the Israelis was signed on 13 September 1993, in Washington DC. Under the terms of the DOP, a settlement based on UN Security Council Resolutions 242 and 338 would be established. 118 Th e DOP established a Palestinian National Authority (PNA) as an Interim Self-Governing Authority for a period of fi ve years. 119 Th e 17 articles of the DOP delineate the means by which authority would be transferred to the PNA, the substance and scope of PNA authority (Article VI), the nature of relations between the PNA and Israel, Jordan, and Egypt (Article XII), and the withdrawal of Israeli forces from some areas, with their redeployment to other areas (Articles XIII, XIV). Th e DOP was not binding on fi nal negotiations and did not address several thorny but critical issues—existing Israeli settlements, the status of territory gained dur- ing the 1967 war, Jerusalem, and refugees.

for the Conclusion of a Peace Treaty Between Egypt and Israel, reprinted at 9–10. See also Treaty of Peace, 26 March 1979, Egypt–Israel, reprinted in (1979) 18 ILM 362. ¹¹³ See FA Boyle, Palestine, Palestinians and International Law (Clarity Press 2003) 58–61. ¹¹⁴ S C Res 242 (1967) 22 November 1967. ¹¹⁵ See ‘A Call for Peace’, PLO Chairman Yasser Arafat’s speech to the European Parliament,

Strasbourg, France, 13 September 1988, reprinted in 1(3) Return 34. ¹¹⁶ Boyle (n 113) 61. ¹¹⁷ Declaration of Principles on Interim Self-Government Arrangements for Palestinians (Oslo

I) September 1993 as reprinted in MF Abdul Hadi (ed), Documents on Palestine Vol II: From the Negotiations in Madrid to the Post Hebron-Agreement Period (Palestinian Academic Society for the Study of International Aff airs 1997) Section I. Also see M Perry and D Shapiro, ‘Navigating the Oslo Channel: Breakthrough in the Peace Talks’ (1993) 9(6) Middle East Insight 9. ¹¹⁸ Article 1 DOP, 1993. ¹¹⁹ Under Article VI, Preparatory Transfer of Powers and Responsibilities:

Upon the entry into force of the Declaration of Principles and the withdrawal from Gaza Strip and the Jericho Area, a transfer of authority from the Israeli military government and its Civil Administration to the authorised Palestinians for this task, as detailed herein, will commence. Th is transfer of authority will be of preparatory nature until the inauguration of the Council.

2 Th e Crucial Peace and Security Questions 27

Two further agreements between the PLO and Israel were reached to facili- tate the implementation of the DOP. 120 On 4 May 1994, there was a limited withdrawal of Israeli security forces from the Gaza Strip and Jericho in the West Bank, with a concomitant albeit limited transfer of powers to the Palestinian National Authority (PNA). On 29 August 1994, the PLO and Israel agreed to a further transfer of civil administrative powers to the PNA in the West Bank via the Agreement on Preparatory Transfer of Powers and Responsibilities . 121

Th e Interim Agreement (hereafter referred to as ‘Oslo II’) 122 was signed by the PLO and Israel on 28 September 1995. A fraction of the total disputed territory— approximately 3 per cent—was placed under the complete control of the PNA, with a slightly larger area placed under joint control. Under the terms of Oslo II, the Occupied Territories were divided into three zones. In the West Bank only Zone A, comprising approximately 3 per cent of the total surface area, was placed under PNA control. However, these areas are not contiguous and Palestinians entering or leaving must pass through Israeli-controlled road networks often closed at Israeli discretion. Zone B—approximately 27 per cent of the West Bank—is jointly supervised by the PNA, which has civil and policing powers, and Israel, which has retained the right to ‘internal security’, the defi nition of which is vague. Th e largest chunk of the West Bank—70 per cent—is classifi ed as Zone C and is under complete Israeli control. Th is area consists of Jewish settlements in the West Bank, some Palestinian villages as well as lands outside Palestinian municipal and village boundaries, main arteries, and ‘bypass’ roads. Zone C also holds some of the region’s primary aquifers, over which Israel seeks to maintain control. 123 In Gaza, approximately 60 per cent of the land is listed as Zone A, with the remaining territory classifi ed as Zone C. 124

As noted, these interim arrangements are not determinate in fi nal negotia- tions. Like the DOP, Oslo II leaves critical issues unanswered, such as the status of Jerusalem, existing Jewish settlements, land and water rights, and refugees, all of which are to be dealt with during ‘fi nal’ negotiations. Pending such agreement, the interim arrangements, with their confl icting and vague perimeters, remain in force.

29 September 2000 marked the beginning of the current Al-Aqsa intifada , triggered by the killing of four Palestinians by Israeli policeman on the Temple

¹²⁰ Th ese are respectively, the Palestinian Israeli Declaration of Principles on Interim Self- Government Authority, 1993 and the Palestinian Israeli Agreement on Security Arrangements in Hebron and the Renewal of the Negotiation, 31 March 1994. A third agreement concerning Israeli– Palestinian economic relations, known as the Paris Protocol, was reached between Israel and the PLO on 29 April 1994. Th e documents are reprinted in Abdul Hadi (n 117) 163–75. ¹²¹ Abdul Hadi (n 117) 212–24. ¹²² Ibid 246–56. Th is agreement is also known as the Taba Agreement. ¹²³ M Zeitoun, Power and Water in the Middle East: Th e Hidden Politics of the Palestinian–Israeli

Water Confl ict (IB Taurus 2008). Also see Amnesty International, Troubled Waters—Palestinians Denied Fair Access to Water (Amnesty International, Doc No MDE 15/027/2009). ¹²⁴ See M Rabbani, ‘Palestinian Authority, Israeli Rule: From Transitional to Permanent

Arrangement’ (1996) 26(4) Middle East Report 201, 4.

Th e Contemporary Middle East28

Mount. 125 Following this incident, Palestinians began violent demonstrations against IDF soldiers throughout the Occupied Territories. Between the start of the uprising, in September 2000, and May 2011, there have been 6,448 Palestinians killed by Israeli security forces and, during the same period, 342 Israeli security force personnel killed by Palestinians. 126

Israel’s incursion into Lebanon in 1982 left lasting marks on the internal politics and stability of Lebanon and Israel. Israel’s objectives were only partially and, some argue, temporarily, realized. Th e PLO was ejected from Lebanon but later emerged in the form of Amal and Hizbollah, which ‘prove to be far more deadly and deter- mined than the PLO’. 127 Syria’s military and armaments were dealt a heavy blow but Hafi z Asad remained in control and its stocks were soon replenished by the Soviet Union. In short, Ariel Sharon’s goal of securing Israel’s northern border was not accomplished and the legacy of the 1982 invasion may best be characterized as partially resolving old issues and partially creating new challenges.

2.3 Th e ‘war’ on ‘terror’

Th e discourse related to the ‘war on terror’, much like that of the Arab–Israeli confl ict, has infi ltrated and absorbed the narratives of local and discreet confl icts infl uencing the way these confl icts are played out at international level. Th e Bush regime’s declared ‘war on terror’, with its architecture pre-dating the events of 11 September, was given eff ect after the attacks on the United States in 2001. Th e ‘war on terror’ is the archetypical ‘normless and exceptionless exception’. 128 It has not, as yet, impacted substantive human rights standards but has ‘disadvantaged the rights regime both rhetorically and legally’. 129 Concepts such as ‘terrorism’ and the ‘war on terror’ dominate the confl ict narrative and court ambiguity, yet there is no fi xed meaning in international law of either ‘war’ or ‘terrorism’. Th e legalist approach of the rights regime endeavours to constrain state responses to ‘terrorism’, but does not address the conduct of ‘terrorists’. Th is has left a legal lacuna between the rights and terrorism discourse that has allowed states to develop ‘rights-free zones’, 130 placing the ‘war’ beyond the territorial jurisdiction of the rights regime. Th e rules of law may not have changed, but there are signs

¹²⁵ Morris (n 89) 660–1. ¹²⁶ Th ere were additional deaths during this period: Palestinians killed by Israeli civilians and

Israelis killed by Palestinian civilians; Palestinians killed by Palestinians and Palestinians killed by armed groups and by the Palestinian authority as well as the deaths of foreign citizens killed by both Palestinians and the Israeli Security Forces. For a more detailed breakdown, see B’tselem, Th e Israeli Information Centre for Human Rights in the Occupied Territories at <http://www.btselem.org> accessed 9 August 2011. ¹²⁷ Morris (n 89) 559. ¹²⁸ O Gross, ‘Th e Normless and Exceptionalist Exception: Carl Schmitt’s Th eory of Emergency

Power and the “Norm-Exception” Dichotomy’ (2000) 21 Cardozo Law Review 1825. ¹²⁹ J Fitzpatrick, ‘Speaking Law to Power: Th e War against Terrorism and Human Rights’ (2003)

14(2) European Journal of International Law 241–64. ¹³⁰ H Koh, ‘America’s Off shore Refugee Camps’ (1994) 29 Richmond Law Review 139, 140–1.

http://www.btselem.org

3 Islam, the Middle East, and Human Rights Law 29

of norm development in a number of areas including: the use of force to include pre-emptive defensive measures, the introduction of an armed confl ict paradigm in peacetime, and changes to the human rights derogation regime.

Th e discourse that enveloped US strategy and was readily adopted by other states resurrected the ‘clash of civilization’s thesis and attempted to wed local and discrete confl icts to this global ‘war’. Th is was particularly palpable in an attempt by the Israeli government to re-narrate the Israeli–Palestinian internal armed confl ict by grafting it on to the global ‘war on terror’ discourse. It also ushered in two US-led alliances of coalition forces off ensives in the region—in Afghanistan and Iraq. Th e respective wars have done much to destabilize the region and little to quieten discomfort with US foreign policy and vision for the region. 131 Th e explanations accompanying the state-building failures have each been scripted to cast ‘Islam’ as the ‘triple threat’; 132 portraying these as battles between the enlight- ened and the zealots.

3 Islam, the Middle East, and Human Rights Law

It would be diffi cult to examine minority rights in the Middle East without some reference to Islam and the literature that suggests its role in ‘informing’ the broader discourse on human rights in the region. Th ere has been substantive and confl icting scholarly debate, which is preoccupied with the question of Islam and human rights, specifi cally: to what extent can international human rights law be realized within Muslim states? Th ere are distinct approaches that endeavour to answer this question. At one end of the continuum, human rights law is read as ‘impeccable with everything else being adjusted to maintain that assumption’. 133 A contrasting interpretation suggests that Muslim states do not read an internal application of Shar î’ ah or Islamic law when complying or rejecting aspects of international human rights obligations. In failing to fulfi l a particular interna- tional human rights law obligation, Muslim states do not reject the letter of the law, rather they challenge certain interpretations of international human rights law that fail to factor the values and norms of their belief system. Th ere are a vari- ety of other accounts that occupy the space within these two rather polar posi- tions, gravitating to one or the other end on the universalist–cultural relativistic understanding of rights.

Th ere are some practical reasons for examining how international human rights instruments can engage in dialogue with Muslim states. If, as it has been argued, ‘national constitutional regimes off er the best guarantee of human rights’, 134

¹³¹ See SV Hook, US Foreign Policy: Th e Paradox of World Power (University of California Press 2008). ¹³² SP Huntington, ‘Th e Clash of Civilisations?’ (1993) 72(3) Foreign Aff airs 22–49. ¹³³ M Baderin, International Human Rights and Islamic Law (Oxford University Press 2003) 5. ¹³⁴ M Ignatieff , A Gutmann, and A Appiah, Human Rights as Politics and Idolatry (Princeton

University Press 2003) 35.

Th e Contemporary Middle East30

then, in the context of the Middle East, what is required is an understanding of how Islamic law engages with human rights broadly, and with minority rights in particular. Th ere are two sets of literatures that inform this discussion. Th e fi rst looks at the various conceptions of Islam, while the second specifi cally addresses Islamic responses to the international human rights debate.

What we fi nd when examining the fi rst body of literature in this contested space are vibrant debates amongst Islamic scholars which move between that which is broadly labelled ‘liberal and reformist’ schools to ‘textualists’ or ‘scholas- tic traditionalists’. Ramadan’s typology of ‘major tendencies’ suggests six ‘diff erent tendencies among those for whom Islam is the reference point for their thinking, discourse and engagement’. 135 Th ese ‘tendencies’ fi nd narrative in studies that specifi cally relate to Islam, Islamic law, and human rights. What emerges from this literature is that Islam and its relationship with democracy and human rights is neither fi xed nor beyond interrogation. Th is is important to note as so much of the literature is preoccupied with the question of Islam and human rights, a rubric that is not particularly informative. As Mayer argues, some of these writ- ings fail to ‘distinguish between principles set forth in the Islamic sources, the historical patterns of interpreting these sources and the results of contemporary governments converting Islamic law into statues and policies’. 136 Additionally, writers often confl ate ‘ideals’, expressed within the diff erent readings of Islam, to ‘actual laws, legal institutions and policies in Muslim countries’, 137 or they read Islam as static, a point we will return to frequently.

A more inclusive and forensic accounting of Islamic ‘tendencies’ towards human rights reveals not one but many diff erent readings, even amongst Islamic scholars. Th is suggests that there can be no uni-narrative on its relationship with or responses to the international human rights debate. In fact, Halliday has out- lined four classes of ‘Islamic responses’ 138 to which Baderin has added a fi fth. 139 Th ese classifi cations more clearly refl ect, rather than confuse, Muslim views on human rights. Depending on the particular approach, the human rights regime is either compatible with Islamic formulations of law or underpinned by Western hegemony or anti-religious, etc. 140 Th us, departing from a position that is either critical or apologetic does not fully inform the discussion. Th at states may or may not promote a particular rights’ objective based solely on the interest of the state is a phenomenon not peculiar to Muslim states. As Mayer notes, the political landscape of the Middle East reveals a ‘skewed balance of power between

¹³⁵ T Ramadan, Western Muslims and the Future of Islam (Oxford University Press 2003) 24. ¹³⁶ Mayer (n 8) xiii. ¹³⁷ Ibid. ¹³⁸ F Halliday, ‘Relativism and Universalism in Human Rights: Th e Case of Islamic Middle East’ in

D Beetham (ed), Politics and Human Rights (Blackwell 1995) 154–5. ¹³⁹ Baderin (n 133) 13. ¹⁴⁰ Th e other two classifi cations are: Islam is incompatible with human rights law; and human rights

can only be fully realized under Islamic Law. See Halliday (n 138) 152 and Baderin (n 133) 13.

3 Islam, the Middle East, and Human Rights Law 31

the government and the governed’ 141 with the nation-state, itself an exogenous construct, rather than an imagined ‘Islamic community’ as the contemporary decision-making institution. 142 Indeed, understanding the sociopolitical and legal landscape of a particular state necessitates looking beyond the rhetoric of a regime, which may invoke Islamic principles to justify a particular action, and focussing on what is unfolding in the broader political space.

In doing so, what emerges from our engagement with the rhetoric of human rights and how its language is used by states in the Muslim and non-Muslim worlds is the importance of recognizing that legal systems evolve, draw in new ideas, and wed these together with established practices, concepts, and norms of justice. Rather than fi xed points of departure between ‘old’, ‘new’, ‘modern’, or ‘traditional’, these form part of a continuum. Th is is as evident in non-Muslim states that have strong historical legacies of involvement with Christian churches and organizations in various sites of power, including but not limited to governing institutions, as it is within Muslim states, many of which are ‘Islamic’ states, that is ruled in the name of Islam, and where Islam has special legal status as state religion, a requirement for the presidency, etc. 143 Th e challenge, as we examine the ques- tion of minority rights in predominantly Muslim states, is to provide an analytical framework within which we might understand how state practices with regard to minorities (and which may ostensibly be based on Islamic authority) intersect and inform modern constitutionalism and international law. We are mindful that such analysis should not posit how ‘old’ or ‘traditional’ Islamic law exists side-by-side with ‘new’ or ‘modern’ constitutional law, as these divisions are never so clear in practice. 144 Th erefore, the way in which a specifi c reading of Islamic law pierces the discourse on human rights will never be consistent across time and space. Against this backdrop, our audit on minorities in the next chapter and our analyses in sub- sequent chapters will endeavour to evaluate how legal practices specifi c to an indi- vidual country—including the rhetorical use of human rights and the adoption of formal rights-based language in constitutions and statutes—draws on a variety of sources, shifting over time in ways that are not identical to Western experiences.

Th is does not suggest that critiques which challenge particular readings of international human rights do not have merit. It may be possible to argue for

¹⁴¹ Mayer (n 8) xiii. ¹⁴² Th is is in sharp contrast to the argument posited by the late Th omas Franck in his seminal work

‘Th e Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 1–46. ¹⁴³ States in our territorial ambit where Islam is declared the offi cial religion of the state include:

Afghanistan, Algeria, Bahrain, the Comoros Islands, Egypt, Iran, Iraq, Jordan, Kuwait, Libya, Mauritania, Morocco, Oman, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia (note that Tunisia’s new draft constitution is not expected to be ratifi ed until April 2013. Whilst there are signifi cant changes to the 1959 Constitution, under Art 148 of the New Constitution, Islam remains the reli- gion of the state. Th e inclusion of this article ignited signifi ant political dissent), the United Arab Emirates, and Yemen. Israel’s system is pluralistic, primarily in matters of personal status and family law. Judicial and legislative decisions, on occasion, apply halakhah (Jewish law). ¹⁴⁴ Even where there are parallel court systems, we argue, these divisions remain unclear.

Th e Contemporary Middle East32

the universalism of human rights principles while still inviting critique as to how interpretations of these principles are constructed and applied. What this does tell us, in the context of minority rights in the Middle East, is that while Islamic law may create a narrative around a given state practice, the dialogue between a state and its minorities is likely to be informed and shaped by the historical social formation and underlying power politics of a state, rather than by Islamic princi- ples. Th is argument suggests a recalibration of the perceived relationship between Islam and human rights and moves away from the notion of Islam as an ‘actor’. Th e language of rights and the more formal legal practices that arise in Muslim countries with regard to minority communities and identities draw on a variety of sources that are evolutive and that, like readings of Islam, may not be consist- ent across Muslim cases, as will become evident in our case review.

Removing the exceptionalist reading of Islam exposes the limitations of some scholarship on human rights in the Middle East that endeavours to frame Islam to fi t within a given ideological structure. 145 In broadly interpreting the role of Islam and human rights and minority rights in particular one should not, as Mayer has argued, ‘speak of “Islam” and human rights as if Islam were a monolith or as if there existed one established Islamic human rights philosophy that caused all Muslims to look at rights in a particular way’. 146 In fact, there is a multiplicity of views on human rights amongst Muslims living in the Middle East. A useful starting point in our examination of the relationship between minority identities and Muslim states in the Middle East is to highlight some of the discourses of the various schools of thought within Islam which, when expressed at state level, reference how a state may engage or resist expressions of particularism.

3.1 Shifting constructions: the ‘plural readings’ of Islam

Th e scriptural reference points for Islam are the Qur’an and the Sunna. Th at these texts are the point of departure for any subsequent reading of Islam is not in dis- pute by any school of thought, nor are three fundamental principles: (a) the abso- lute oneness of God, the creator; (b) that there can be no representation of Him; and (c) that the truth of his word is revealed in the Qur’an. Th ese principles are the axis around which the diff erent Islamic tendencies have emerged, forming the basis of what is referred to as the tawhid . 147 While these schools may converge on explicit and uncontested core ‘axes [that] are identifi able and accepted by the vari- ous trends or schools of thought’, the varied religious, political, and social expres- sions and actions suggest that ‘[Islam’s] textual references allow plural readings’. 148

¹⁴⁵ Th e most obvious examples of this can be found in the writings of Bernard Lewis. See, in partic- ular, Th e Middle East and the West (Littlehampton Book Services 1968); Islam in History: Ideas, People, and Events in the Middle East (2nd edn, Open Court 2001); Islam and the West (Oxford University Press 1994); What Went Wrong? Th e Clash between Islam and Modernity in the Middle East (Harper Perennial 2003). For a critique of Lewis’s scholarship see E Said (n 13) 315–21, 343–7. ¹⁴⁶ Mayer (n 8) xi. ¹⁴⁷ Ibid 12. ¹⁴⁸ Ibid 24.

3 Islam, the Middle East, and Human Rights Law 33

It is in these varied readings, away from the essential uncontested core, that con- fl icts emerge.

For Muslims, the profession of faith, or shahada , is guided by Shar î’ ah , literally translated as ‘the way’. 149 In its broadest interpretation, this concept suggests a path leading to the source. It determines ‘how to be a Muslim’—based on a nor- mative reading of the scriptural references. For jurists and usuliyyan (scholars of Islamic law), it forms the corpus of Islamic law, drawn primarily from the Qur’an and Sunna, 150 and other main and secondary texts.

[T]he corpus of the Shar î’ ah . . . is a human construction, and some aspects of it may evolve just as human thought evolves and just as some aspects of the Qur’an and Sunna were revealed over time . . . Th is renewal is not a modifi cation of the sources but a transformation of the mind and eyes that read them, which are indeed naturally infl uenced by the new social, political, and scientifi c environment in which they live. 151

Baderin distinguishes between Shar î’ ah and Fiqh wherein the former refers to sources of revealed law, which are textually immutable, while the latter ‘refers to methods of the law, that is, the understanding derived from and the application of the Shar î’ ah which may change according to time and circumstances’. 152 Th is elaboration was undertaken by Muslim legal scholars ( ulama ) and the ‘modes of understanding Shar î’ ah in contemporary Islamic activism are largely reactions to the ulama’s established position and the latter’s defence and counterattack’. 153

For both Baderin and Ramadan, Islamic law does not conform to any fi xed narrative, and cannot be said to exist apart from external infl uences. In terms of social commitment and political participation, this suggests that the sources of Islamic law, ‘transformed by mind and eye’, will reveal diff erent readings and understandings, each shaped by the experiences and sociopolitical backdrop of the reader. Th is evolutive approach, factoring in human agency, represents one of many readings, or ‘tendencies’ ‘among those for whom Islam is the reference point for their thinking, their discourse and their engagement’. 154 Although it is possible to identify major trends or schools of thought within Islam, the multiplicity of readings provide many detours and points of departure, some of which are region- or state-specifi c and remain beyond the realm of this book.

¹⁴⁹ For a succinct discussion on the Shar î’ ah see Z Sardar, Reading the Qur’an (Hurst & Co 2011) 285–92. ¹⁵⁰ Th e Qur’an is the holy book of Islam, which was revealed to the Prophet Muhammad, but diff ers

from other scriptural sources such as the Bible as it is meant to be recited, rather than read. Th e term ‘Sunna’ means the acts and sayings of the Prophet Muhammad, who is considered by Muslims as the perfect human being, which were handed down in reports, or al hadith . Th e term ‘ hadith ’ and ‘Sunna’ are occasionally used interchangeably but one refers to the direct action or sayings of the Prophet and the other to the reports of what the Prophet, his leading Companions, and the Followers had said or done. Islamic scholars often disagree on the authenticity of the hadiths , confi rming only a fraction of these reports as authentic. For more see Sardar (n 149) 3. ¹⁵¹ Ramadan (n 135) 37–8. ¹⁵² Baderin (n 133) 34. ¹⁵³ M Hashem, ‘Contemporary Islamic Activism: Th e Shades of Praxis’ (2006) 67(1) Sociology of

Religion 23, 25. ¹⁵⁴ Ramadan (n 135) 24.

Th e Contemporary Middle East34

Th is subsection limits its review to some of the major trends or readings iden- tifi ed by scholars, beginning with the development of methods of Islamic law ( Fiqh ) and how these have been read in to diff erent orientations. As we will detail later in this chapter, these varied approaches interface with rights concepts and practices in markedly diff erent ways.

With the death of the Prophet and the expansion of Islam, the lacunae between what had been provided for by textual sources or Prophetic traditions and new and emerging situations and challenges gave rise to the concept of ijtihad or legal rea- soning. 155 Th is concept was traced to a conversation the Prophet had with one of his companions, Mu’adh ibn Jabal, in which the Prophet asked Jabal, who had been dispatched to serve as a Judge in Yemen, how he would decide cases in the absence of guidance from the Qu’ran or the Sunna. He is reported to have replied ‘ ajtahidu ra’iy ’, which means ‘I will exert my own reasoning’. 156 As the Prophet was reported to have been satisfi ed with this answer, this concept was adopted and through this concept, other methods were developed and applied. Th is allowed jurists to apply an evolutive approach to the texts and traditions. As Baderin concludes ‘[t]hus, while the revealed sources of Islamic law (that is, Shari’ah) was completed with the demise of the Prophet, the evolved methods of Islamic law were to be the vehicle by which the jurists would transport the Shari’ah into the future’. 157

As Islam’s infl uence spread outside Arabia, attracting adherents from diverse cultures, the number of legal schools of reasoning also fl ourished. By the end of the third century, the numbers of these schools were signifi cantly reduced, with many disappearing or merging.

While the Qu’ran and the Sunna were accepted as primary scriptural texts from which other reasoning fl owed, the varied cultural diff erences, linked to where these schools were located, impacted respective interpretations of these scriptural references. Th e sheer volume of interpretations of texts that would fl ow from these divergent sources of interpretations necessitated a system of centrality and control which would emerge in the middle eighth and ninth centuries. 158 Legal treaties would emerge, divided into two aspects of Islamic law— ibadat or religious worship 159 and mu’amalat or social relations 160 —which would become the offi cial material sources of Islamic law. By the end of the tenth century, it was argued that most of the legal questions that required interrogation had been completed, and, by the thirteenth century, the process of inquiry through ijtihad

¹⁵⁵ For a basic appreciation of this concept see D Pearl, A Textbook on Muslim Personal Law (Croom Helm 1987) 14. ¹⁵⁶ Th is process was later put in the noun form of ijtihad , to mean legal reasoning. ¹⁵⁷ Baderin (n 133) 37. ¹⁵⁸ A An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International

Law (Syracuse University Press 1990) 18. ¹⁵⁹ For more on this concept see MS Numani, Sirat-Un-Nabi: Life of the Prophet (translation by TB

Budayuni from the original text in Urdu published in six volumes in Urdu, Kazi Publications 1979) 34. ¹⁶⁰ For more on this concept, especially its meaning in legal terms, see DH Dwyer, Law & Islam in

the Middle East (Begin & Garvey 1990) 63.

3 Islam, the Middle East, and Human Rights Law 35

had transformed to one of conformism through taqlid where all legal questions were argued to have been answered. Th e ‘closing of the gate of ijtihad’ or ‘ insidid bab al-ijtihad ’ has been described by Schacht as:

. . . [a] point . . . when the scholars of all schools felt that all essential questions had been thoroughly discussed and fi nally settled, and a consensus gradually established itself to the eff ect that from that time onwards no one might be deemed to have the necessary quali- fi cations for independent reasoning in law, and that all future activity would have to be confi ned to the explanation, application, and, at the most, interpretation of the doctrine as it had been laid down once and for all. Th is ‘closing of the door of ijtihad’, as it was called, amounted to the demand for taklid, a term which had originally denoted the kind of refer- ence to Companions of the Prophet that had been customary in the ancient schools of law, and which now came to mean the unquestioning acceptance of the doctrines of established schools and authorities. A person entitled to ijtihad is called mujtahid, and a person bound to practice taklid, mukallid. 161

It is from this point of departure that we can understand the ‘tendencies’ or orientations toward fi qh that would emerge in Islamic reasoning and that still exist today.

As Lapidus noted, historically, the corpus of theo-legal writings that would emerge served to organize Muslim society and gained primacy in Muslim con- sciousness. 162 Th e Shar î’ ah , as noted, refers not only to a detailed set of legal rulings but, more generally, represents the general moral and legal mandates of Islam, with the fi qh representing the temporality of Shar î’ ah understanding. As El Fadl has argued, observance of fi qh rulings are necessary to ensure a perfect and successful society. 163 However, it is in the orientations toward fi qh that diversity amongst Muslims emerges. Some take reference points that originate in reason- ing frozen in the tenth century, other schools believe that the ‘gate’ of legal rea- soning was never fully closed and that as Islamic law was:

. . . constructed by its founding jurists, it should become possible to think about recon- structing certain aspects of Shari’a, provided that such reconstruction is based on the same fundamental sources of Islam and is fully consistent with its essential moral and religious precepts. 164

Such diversity in paths of departure from the ‘axis’ of Islam rejects the notion of Islam as a monolith actor. Th e human agency in the construction of Islamic law must be factored in whether certain rights-based concepts are included or excluded from political discourse.

Th e various readings of the Qu’ran are revealed in the diff erent schools of thought among Muslims. Th ere are a number of typologies that have attempted

¹⁶¹ J Schacht, An Introduction to Islamic Law (Oxford University Press 1964) 70–1. ¹⁶² IM Lapidus, A History of Islamic Societies (Cambridge University Press 1998) 98–125. ¹⁶³ See KA El Fadl, ‘Muslim Minorities and Self-Restraint in Liberal Democracies’ (1996) 29 Loyola

Los Angeles Law Review 1525. ¹⁶⁴ An-Na’im (n 158) xiv.

Th e Contemporary Middle East36

to categorize these trends. It is perhaps best to understand these less as fi xed points, but rather as trends or tendencies that exist along a continuum between two distinct points of departure. At one end of the spectrum we fi nd the textual- ists, including the mediated ‘scholastic traditionalism’, the literalist/Salafi orien- tation, as well as Sufi sm, and, at the opposite end, the contextualists, sometimes referred to as the rational reformists. 165 Even as we provide broad groupings, it is necessary to note that while they converge closer to one end of the spectrum as opposed to the other, they are distinct and there are some parts of the historical formation of each school that may give rise to movement within the spectrum. We have endeavoured to chart the various schools of thought along three points around a rather simplifi ed taxonomy. 166 Schools that adopt a scholastic or lit- eral approach are closest to the textualist end of the scale, where all authority is derived solely from the texts and established law. Th e classical school or ‘scho- lastic traditionalism’ 167 forms the basis of interpretation for both classical Sunni and classical Shi ‛ a schools and falls under this umbrella. Th ese schools tend to draw on writings of scholars that lived between the eighth and eleventh centuries and refl ect a culture in which a particular classic jurist lived at the time the rul- ings were made. In these schools the texts are often read in a specifi c way that is distinct to that particular school of thought. 168

By contrast the textualist or literalist jurists, referred to as fuqaha’ ashab al- hadith , of the earlier ninth century proposed that Islamic law be inferred from hadith 169 without signifi cant resort to reason. Where there are contradictions among hadith reports and where they cannot be resolved by means of isnah (cita- tions) comparison, the contradictions are let stand, as textualists refuse to defi ne law by their own preferences. 170 Th e system of validation of the hadith off ered through the process of isnah had two eff ects: it made it possible to record and validate the rulings of jurists, but this has, concomitantly, led to taqlid or legal conformism, which has, in practice, often assumed a blind imitation or con- servatism, leaving no scope for ijtihad or interpretation in the absence of text of

¹⁶⁵ WB Hallaq, Th e Origins and Evolution of Islamic Law (Cambridge University Press 2005) 122–77. ¹⁶⁶ Ramadan has outlined six tendencies: scholastic traditionalism, Salafi literalism, Salafi reform-

ism, political literalist Salafi sm, ‘liberal’ or ‘rationalist’ reformism, and Sufi sm. In this section, we have collapsed this typology further and grouped these tendencies into three categories: those for whom all authority is derived solely from the texts, those for whom the texts remain ‘unavoidable’ but who apply reason in order to understand the purpose and intent of the law and, fi nally, those for whom reason and reason alone must be the reference point in matters of social behaviour. Th ese rather simplifi ed categories must be applied with all the caveats noted by Ramadan applying to an even greater degree in our review. See Ramadan (n 135) 24–8. ¹⁶⁷ Ramadan (n 135) 24. ¹⁶⁸ Ibid. ¹⁶⁹ See W Hallaq, Sharia: Th eory, Practice and Transformation (Cambridge University Press 2009)

45–51. ¹⁷⁰ Th is is in contrast to the rationalistic jurisprudents (ashab al-ra’y) who also use hadith , but far

less extensively and without signifi cant use of the citation method of isnah.

3 Islam, the Middle East, and Human Rights Law 37

references. 171 Th is mediated approach reads the source texts of Islam as static and immoderate, unable to engage with changing socio-economic or political back- drops within which it is applied.

Th ere are two additional textualist 172 trends that merit note. Th ese schools of thought share the literalist approach to the texts of the scholastic schools, but diff er in a few signifi cant ways. In both literalist and political literalist Salafi schools, the texts (and therefore the authenticity of the texts) are central to ‘cer- tain attitude or action, whether in the area of religious practice, dress code, or social behaviour’. 173 However, both reject the mediated approach of the scholastic tradition and believe that the scripts must be ‘interpreted in an immediate way, without scholarly conclaves’. 174 Th e political literalists diff er from the literalists, as they have moved their engagement from one of isolation, which characterizes the practice of literalists, to political activism that derives engagement in the public sphere from the reformists but grafts this on to a literalists’ approach that rejects endeavours to modernize the literal word of the texts.

‘Scholastic traditionalism’ is found in the four schools of Sunni Islam, each named after a classical jurist: the Shafi ’i, 175 Hanafi , 176 Maliki, 177 and Hanbali. 178 It is also found in the Jaferi school 179 closely associated with Shi ‛ a Islam. In this school, fatwas , or time- and space-bound rulings of early jurists, are accorded much more weight, in large part due to the hierarchical structure of Shi ‛ a Islam. Yet, this also provides for more fl exibility, as Imams have considerable infl uence in consid- ering the context of each ruling, something historically absent from Sunni Islam. Adherents of this scholastic approach include the Barelwis, 180 the Deobandis, 181

¹⁷¹ See Pearl (n 155). ¹⁷² Another possible way to describe these tendencies would be orthodoxy, although there is debate

as to whether the idea of ‘conformity’ describes fully the approach of these schools. ¹⁷³ Ramadan (n 135) 25. ¹⁷⁴ Ibid. ¹⁷⁵ Primarily in South East Asia including Indonesia, Malaysia, Philippines, and the Muslim minor-

ities located in mainland SEA. Followers of the Shafi ’i school can also be found in South Egypt, Sudan, Ethiopia, Somali, and North Yemen. ¹⁷⁶ Primarily in the Indian subcontinent, West Africa, Egypt, Turkey, Syria, Lebanon, Jordan,

Central Asia, the Balkans, Iraq, Afghanistan, Pakistan, India, Bangladesh. ¹⁷⁷ Mainly in North Africa and West Africa including: Algeria, Tunis, Morocco, Mauritania, Libya,

but also in Kuwait, Bahrain, Dubai, and Abu Dhabi. ¹⁷⁸ Followers of this school live mainly in Arabia: Saudi Arabia, Qatar, North East of Oman, and the

rest of the Arab Emirates. ¹⁷⁹ In Iraq and Iran. ¹⁸⁰ Th is movement was founded by Mawlana Ahmad Reza Khan Barelwi of Bareilly, Rohilkhand,

India and can be found in the Hanafi Muslim communities in the United Kingdom, India, Pakistan, Bangladesh, and South Africa. ¹⁸¹ Th is movement began as a reaction to British colonialism in India. It can be/is traced to the

Darul Uloom Deoband school in Uttar Pradesh. Th is school follows the fi qh of Abu Hanifa and the Aquida of Abu Mansur Maturidi and its followers are found in India, Pakistan, South Africa, and the United Kingdom. For a controversial assessment of the security threats from both Barelwis and Deobandis see RSN Singh, ‘Pakistan’s Islamic Journey’ (2007) 22(2) Indian Defence Review 143–51.

Th e Contemporary Middle East38

the Ahl al-Sunna, 182 the Tabligh-i Jamaat, and the Taliban (Afghanistan). Ramadan’s typology distils several other ‘textualists’. 183 Th us, literalists can be found in the West as well as in Saudi Arabia, Jordan, Egypt, and Syria. Political literalists include the Hizb al-Tahrir and Al-Muhajirun movements. 184

Th e reformist-conservative trend is roughly the mid-point between textualists and contextualists. 185 Th is approach seeks renewal of the Shar î’ ah to facilitate the formation of a new fi qh , which would be able to respond contemporaneously to changing sociopolitical contexts. It also attempts to transcend structural inequali- ties in the approach of the classical school in the area of public law. While the reformist-conservatives believe that the texts cannot be bypassed, this approach adopts an internal dynamic between the text and reason that endeavours to respond to a changing sociopolitical and economic environment.

Some of the earlier contemporary writings of the contextualists, also referred to as ‘liberal’ or ‘rationalist reformist’ approaches, emerged during the colonial period. 186 It was strongly infl uenced by science and technology, as well as by concepts like democracy that fl owed from the West. 187 As we see in the Syrian context, concepts of minority rights also arguably accompanied these ideas. Th e separation of religion from the ordering of public and political life signalled an important change in the way in which states were governed. 188 Here the orienta- tion is one of clear division between reason and text. Th e Qu’ran and the Sunna are therefore drawn on for guidance in matters of worship or ibadat , but it is reason that is the reference point for matters related to inter-human relations or mu’amalat . As Ramadan has stated:

. . . with social evolution in mind, many rationalists believe that the Qur’an and the Sunna cannot be the point of reference when it comes to norms of behaviour and that it is applied reason that must now set the criteria for social conduct. 189

¹⁸² Ahl al-Sunna wal-Jamdaa or the ‘the People of Tradition and Community’ accept the rule of the Umayyads and the Abbasids, and comprise the majority denomination. Th ey refer to the opposing sects (Shi ‛ a) as ‘those who refuse the true tradition’ (Rawafi d), while Shi ‛ a (the second largest denom- ination) call themselves ‘the People of Infallibility and Justice’ (Ahl al-’isma wal-adala) and reject totally corpuses of traditions claimed by the Sunnites. Shi ‛ a are dominant in Iran, Iraq, Azerbaijan, and Bahrain. ¹⁸³ Ramadan (n 135) 27. ¹⁸⁴ Ibid. ¹⁸⁵ To some extent, this category envelops the Salafi Reformist tendency noted by Ramadan (and

Ramadan’s approach may be most aligned with this orientation), although some strands of this may be more appropriately placed in either the reform or traditionalists camps. As has been noted, these categories are a guide only as there are variations in each school, which have tendencies that may lean towards a more literal or reformist approach, whilst sitting comfortably in neither. ¹⁸⁶ Ramadan (n 135) 27. ¹⁸⁷ Allameh Muhammad Iqbal from Pakistan; Shihabeddin Marjoni from Kazan; Sir Sayyad Ahmad

Khan from India. See S Hunter, Th e Future of Islam and the West: Clash of Civilizations or Peaceful Coexistence? (Praeger 1998) 78. ¹⁸⁸ Unsurprisingly, the ‘liberals’ were proponents of Mustafa Kemal Ataturk’s secularization project

in Turkey. ¹⁸⁹ Ramadan (n 135) 28.

3 Islam, the Middle East, and Human Rights Law 39

In any case, the various ‘tendencies’ within Islam and the diverse and often con- trasting approaches to interpretation and implementation of Islamic law negates any notion of a singular Muslim view or engagement on matters relating to social commitment and political participation. Just where the tendency of a particular school or trend falls on the continuum between textualism and contextualism, refl ects, to a large degree, the potential for, what Baderin refers to as, a ‘dia- logical approach’ when applying universal human rights norms within Muslim states. 190

Given the diversity of approach within diff erent tendencies of Islam, it comes as no surprise that when addressing the question of rights, we are in contested terrain. A number of scholars argue that the Qur’an presents fi nite guidance in legal subject matters and, save for a few specifi c off ences, does not ‘set out the legal consequences of its “public law” injunctions’. 191 Scholars of the sources and development of Shar î’ ah have noted that there are a relatively small number of Qur’anic verses that have a legal element, and a majority of those relate to worship rituals, leaving only about 80 verses that, in strict terms, deal with legal subject matter. 192 Th ere is one further issue of note, which rests with the formative period of the second-century development of Islamic law, ie the process of naskh , or the negation or repeal of certain verses of the Qu’ran in favour of others. A historical review of the diff erent revelations of the Prophet between his earlier Mecca and later Medina writings were dealt with using this process but, An-Na’im argues, this left the process abrogating earlier Mecca writings in favour of later Medina writings. 193 An-Na’im posits that returning to earlier writing and revisiting the naskh process may allow some movement on how to ‘resolve the problems raised by the modern application of the public law of Shar î’ ah ’. 194

An-Na’im’s approach, as previously noted, clearly represents a rationalist approach to Islamic law. Th e approach opens itself to a particular methodology and reasoning with a view that, arguably, could provide the interface or bridge between the tendencies of textualists and what is argued by rationalists, like An-Na’im, to be the necessary ‘reform’ needed to make ‘Islamic public law work- able today’. 195 It is not necessary to engage in the debates that emerge from this call for Islamic reform to critically assess the diffi culties faced when evaluating what has been proff ered as Islamic law in diff erent jurisdictions and the various rights-based arguments drawn from international human rights law. As Mayer has argued, there exists a division, quite vitriolic at times, between those who question the source as well as the effi cacy of comparing Islamic law to interna- tional human rights law. 196 Yet the public debates and literatures that wrestle

¹⁹⁰ Baderin (n 133) 5. ¹⁹¹ An-Na’im (n 158) 20. ¹⁹² W Hallaq, An Introduction to Islamic Law (Cambridge University Press 2009) 14–30. ¹⁹³ An-Na’im (n 158) 21. ¹⁹⁴ Ibid. ¹⁹⁵ Ibid, 34. ¹⁹⁶ Mayer (n 8) xii–xiv.

Th e Contemporary Middle East40

with the relationship between Islamic tenets and human rights not only remain but have ‘proliferated over recent years’. 197 As Mayer rightly notes, however, analysis of this relationship is often found under the rubric of Islam and Human Rights, when, more accurately, what we are comparing is:

. . . selected civil and political rights formulations in international law and in actual and proposed rights schemes purporting to embody Islamic principles with a critical appraisal of the latter with reference to international law, evolving Islamic thought, and relevant state practice. 198

Th ough cumbersome, this more exacting task refl ects positively on the caveats necessary in order to accurately undertake an examination on the interface of civil and political rights (our task at hand) and Islamic law. Th ough contested, it is inescapable that it is not possible to present a single narrative on how to approach this task. Although purportedly drawing from the same sources, Muslim voices are complex and varied when engaging with questions of human rights. Similarly Muslim state practice with regard to the implementation and interpretation of public law also varies.

As we begin to look at specifi c civil and political rights questions, it is worth noting from the outset that ‘the sources and methods of Islamic law contain common principles of good government and human welfare that validate mod- ern international human rights ideals’. 199 Where Islamic legal principles inter- sect economic, social, and cultural rights, there is complementarity and in other cases, such as rules governing religious rituals, there is no obvious interface and, therefore, no confl ict. Compatibility issues ostensibly arise when engaging with rules related to women’s legal status, criminal procedure and select penal laws and procedures and, critical to our examination, legal rules related to freedom of religion and religious minorities. Section 5 will examine these issues, noting that there is a ‘diff erence in nature between Islamic principles related to religious ritual and those that concern the aff airs of world and society’. 200 Th e fi rst, as noted earlier, are fi xed and, for the most part, decided. Th e latter, which would include ‘the legal consequences of its “public law” injunctions’ 201 are, ‘with very rare exceptions, general and give guidance in a certain direction, rather than fi x- ing a restricting framework’. 202 Th erefore, as we endeavour to provide an audit where issues of civil and political rights have intersected and ostensibly confl icted with Islamic law, it is important to note that these readings of Islamic principles are not uniform. Th ere remain debates within the various schools of Islam, within the tendencies outlined by scholars of Islam and Islamic law, and by Muslims

¹⁹⁷ Ibid, xii. ¹⁹⁸ Ibid xi. ¹⁹⁹ Baderin (n 133) 13. ²⁰⁰ An-Naim (n 158) 20. ²⁰¹ Ibid. ²⁰² Ramadan (n 135) 145.

3 Islam, the Middle East, and Human Rights Law 41

themselves, on compatibility and ‘public law’ interventions in the name of Islam. While questions related to rituals exist within an unchangeable framework, ‘it is not at all the same on the social and political level, where principles and an aware- ness of the prohibitions inspire the type of commitment that individuals make in these areas’. 203 He goes on to argue that the inspiration does not take the form of a ‘defi nitive model, a timeless code, or, more broadly, a dogma for action’. 204

Any review on ostensibly ‘Islamic’ restrictions with regard to human rights must be read within these caveats. It is also useful to divide this review into two streams—criminal law and procedure, which preoccupies much of the material concerning human rights and Islamic law, and other civil and political rights issues, e.g. discrimination, religious minorities, equality, and freedom of religion that have been subject to Islamic restrictions in jurisdictions purportedly apply- ing Islamic law.

Th e interface of Islamic criminal law and human rights principles is a site of potential confl ict in matters related to substantive law, evidence, and procedure. As there are signifi cant bodies of work that undertake audits on the administra- tion of criminal justice and the application of Shar î’ ah , and since this question is beyond the scope of this inquiry, we will focus on issues concerning equality. It could be argued that engagement with this aspect is the basis on which minor- ity status has been determined. In addition, engaging with this issue will help in arriving at an explanation for the many contemporary conceptual confl icts between groups in the region.

Th ere is a signifi cant body of secondary literature that deals with Islamic law and other areas of international law (e.g. use of force, war, ‘terrorism’) and basic human rights concerns (slavery, gender, and religious minority discrimination) and that provides various analytical approaches to these issues. 205 Th is section will focus on two of these—equality and slavery—both of which are material to an understanding of how these concepts relate to minorities. When comparatively engaged, the rules on slavery and discrimination based on gender or religion reveal potential confl ict zones.

Issues related to gender discrimination intersect with Islamic criminal justice as well as its equality provisions in the context of both procedure and penalties. Th ese questions are extensively detailed and critiqued elsewhere 206 and will be dealt with summarily. In relation to dhimmis (non-believers) and women, Islamic

²⁰³ Ibid. ²⁰⁴ Ibid. ²⁰⁵ See SW al-Zuhili, ‘Islam and International Law’ (2005) 87 (858) International Review of the Red

Cross 263–83; AA An-Na’im, ‘Islam and International Law: Toward a Positive Mutual Engagement to Realize Shared Ideals’ (2004) 98 American Society of International Law Proceedings 159; M Baderin, International Law and Islamic Law (Ashgate 2008). ²⁰⁶ For more on these writings see Hallaq (n 165) 450–73; Z Mir-Hosseini, ‘Th e Construction

of Gender in Islamic Legal Th ought and Strategies for Reform’ (2003) 1(1) Hawwa 1–28 and Z Mir-Hosseini, Marriage on Trial: A Study of Islamic Family Law—Iran and Morocco Compared (IB Taurus 1993). Also see L Welchman, Beyond the Code: Muslim Family Law and Sharia Judiciary

Th e Contemporary Middle East42

penal law allows monetary compensation ( diya ) for the off ence of jinayat , when the victim is a dhimmi or a woman which is less than that awarded when the vic- tim is a Muslim male. 207 With regard to evidence and procedure, the testimony of dhimmis and women is not allowed in the most serious of criminal cases that involve hudud and qisas . 208 In civil matters, women are allowed to testify, but two corroborating female testimonies are necessary to constitute a single witness; restrictions not applicable to Muslim males. 209

Other potential legal confl ict zones relate to matters of personal and family law. In matters of personal law, questions of discrimination arise in marriage 210 and divorce. 211 Other contested areas include inheritance, 212 guardianship, and con- trol. 213 Th ere are diff ering approaches to these issues, with some critical Muslim feminist and other writers 214 highlighting that the inequality framework has been mediated; that some textualists have constructed a particular social vision of Islamic law 215 which is patriarchal; and pointing to scriptural texts to suggest an alternative reading. 216 Still other writers suggest that the Qu’ran itself should be read temporally, as a text that was, at the time of the Prophet, progressive and even reformist on gender issues. 217

Th e scholastic traditionalist or textualists’ approach rejects the principle of equality arguments on the basis that its premise, that all persons are equal before the law, confl icts with Islamic principles, which diff erentiate between women

in the Palestinian West Bank (Kluwer 2000); L Welchman, ‘Special Stipulations in the Contract of Marriage: Law and Practice in the Occupied West Bank’ (1994) 11 Recht van der Islam 55–77 and A el-Azhary Sonbol (ed), Women, the Family and Divorce Laws in Islamic History (Syracuse University Press 1996). ²⁰⁷ Hallaq (n 165) 308–23. ²⁰⁸ Ibid. ²⁰⁹ Ibid. Also see SS Ali, Equal Before God Unequal Before Man (Martinus Nijhoff 1999). ²¹⁰ A man can marry up to four wives; a woman can take only one husband; a Muslim woman can

only marry a Muslim but a Muslim man can marry a Christian or a Jew, although not a non-religious person. Qur’an verse (4:3). ²¹¹ A man can divorce his wife without her consent but a woman is required to have the consent of

her husband and the divorce must take place in the Courts and for very strict and specifi ed reasons. ²¹² Th e inheritance or mirath of a female is generally half of what it would be to a male of the same

relationship to the deceased. Qur’an verse (4:11). ²¹³ Th ese revelations are revealed in S ū rah 4:34–42. ²¹⁴ See H Moghissi (ed), Women and Islam: Critical Concepts in Sociology (Routledge 2004); F

Mernissi, Th e Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam (Perseus Books 1992); M Afkhami (ed), Faith and Freedom: Women’s Human Rights in the Muslim World (IB Taurus 1995); A Wadud, Qu’ran and Woman: Rereading the Sacred Text from a Woman’s Perspective (Oxford University Press 1999); GW Falah and C Nagel (eds), Geographies of Muslim Women: Gender, Religion, and Space (Th e Guildford Press 2005). ²¹⁵ MA Ramadan, ‘Notes on the Shari’a: Human Rights, Democracy and the European Court of

Human Rights’ (2007) 40 Israeli Law Review 156–97. ²¹⁶ Qur’an verse (49:13) states: ‘O mankind, surely we have created you from a male and a female,

and made you tribes and nations that you may know each other. Surely the noblest of you in the eyes of God is the most pious among you.’ ²¹⁷ See H Afshar and M Maynard (eds), Th e Dynamics of ‘Race’ and Gender: Some Feminist

Interventions (Taylor & Francis 1994).

3 Islam, the Middle East, and Human Rights Law 43

and men and believers and non-believers. By contrast, contextualist writers endeavour to apply various methodologies and hermeneutic approaches to rec- oncile this sharp end of Islamic and human rights law. Engineer, for example, has attempted to draw a distinction between revelations that are temporal (and there- fore may be evolutive), and those that are normative and therefore immutable. 218 His approach has been criticized as lacking suffi cient clarity and empirical basis, as there are certain scriptural references that seemingly defy such distinction. Th ere is a catch-22 for contextualists who believe the scriptural revelations to be immutable while at the same time inserting a degree of reason, often through endeavouring to distil the context from the normative readings of the texts. 219 To the extent that context can be introduced with the divine revelation remaining preferential, it might be possible to apply such an approach to addressing gender discrimination. However, where compatibility issues cannot be resolved by such an approach, contextualists are left to apply a completely rationalist framework to resolve the confl ict, ignoring certain textual sources, or to abandon reason in favour of ‘unequivocal Sha’ria ’. 220

3.2 Th e Ahl al kitab, the Islamic minorities, 221 and the ‘non’ person

To re-narrate the discussion of Islam and human rights is not to suggest that the various interpretations of Islam into the rights discourse have no conse- quence. Th e question of religious minorities is at the interface of the engagement of Islamic law and the rights-based discourse. 222 Religious minorities, as seen through various readings of Islam, can be divided into three groups: ‘peoples of the book’ ( ahl al kitab ), Islamic minorities, and the ‘non’ person. 223

Understanding the formulation by Muslim jurists of Shar î’ ah rules that relate to non-Muslims necessarily requires that these rules be interpreted within their historical context. As Mayer has noted, during the formative period of Islam, when these rules were crafted, ‘[t]he nascent [Islamic] community was weak and beleaguered, faced with the diffi cult task of absorbing non-Muslim communities

²¹⁸ AA Engineer, Th e Rights of Women in Islam (St Martin’s Press 1996). ²¹⁹ Ibid 158–61. ²²⁰ An-Na’im has tried to resolve this conundrum by engaging Mahmood Taha’s writings on the the-

ory of abrogation (a technique similar to public international law). As applied, this practice negated any writings from the Mecca period that contradicted later Medina writings. An-Na’im proposes to revisit this process with a view to restoring the Mecca writings, which he argues are more receptive to universalist principles (and therefore more compatible with human rights). See An-Na’im (n 158) 99. ²²¹ Islamic minorities are sometimes referred to as ‘heterodox’. See Chapter 2, section 2. ²²² For a related discourse see AF March, ‘Are Secularism and Neutrality Attractive to Religious

Minorities? Islamic Discussions of Western Secularism in the “Jurisprudence of Muslim Minorities” (Fiqh Al-Aqalliyyat)’ (2009) 30(6) Cardozo Law Review 2821–54. ²²³ See RC Martin, ‘From Dhimmis to Minorities: Shifting Constructions of the non-Muslim Other

from Early to Modern Islam’ in M Shatzmiller (ed), Nationalism and Minority Identity in Islamic Societies (McGill-Queens University Press 2005) 5.

Th e Contemporary Middle East44

in newly won territories while having to meet the military threat of powerful non Muslim foes’. 224 Th e lesser or military jihad that characterized this period was undertaken ‘both to expand the territory subject to Muslim control and to spread the Islamic religion’. 225 Th e concepts of Dar al-Islam (the abode of Islam; i.e. territory under Muslim rule where Islamic laws are applied) and Dar al-Harb (abode of war; i.e. territory under non-Muslim rule where non-Islamic rules apply) framed the early Islamic ‘worldview’. Th e rapid expansion of Islam engendered the notion of the ‘other’ and, against this backdrop, non-Muslim groups were classifi ed as dissidents or enemies; those who submitted to Islamic rule, and those who posed a threat. Religion, therefore, was the sole determinant of minority status—as no other basis for this status can be found within Islamic jurisprudence. 226

Within Dar al-Islam , non-Muslim religious communities were able to continue to fl ourish. 227 However, while the classifi cation of some religious minorities would ensure a degree of protection, for others, it would serve as the basis for discrimina- tion, the vestiges of which remain to date. Some earlier categories are not relevant contemporaneously; however, these classifi cations were foundational to Islamic legal and religious discourse on minorities and, therefore, merit some review.

During the early formative period in Islam, the ahl al kitab (or peoples of the book) who did not convert to Islam were conferred the political status of dhimmis by judges (or qadis ) living within Dar al-Islam . Th is status was initially conferred onto Christians and Jews, as they were in possession of divine books of revelation, and the Sabi’ans of Harran, and was extended to Zoroastrians and to Hindus in later periods. 228 During the Meccan period, it has been recorded that the Prophet Mohammed was sympathetic to the Jews of Arabia. Th is relationship became strained after the Hijra , when Jewish tribes were viewed with suspicion over col- laboration with Meccan enemies of the Prophet. 229 Th e formulation of dhimmis’ status was seen as necessary during this early period of rapid expansion and state formation. Th ese earlier practices would serve as the basis for the millet system, which legally defi ned and codifi ed diff erence in order to maintain political order and facilitate Ottoman rule over a diversity of communities, themes that are explored in detail in later chapters.

Th ere is some debate as to whether dhimmis were, in practice, protected citi- zens, second-class citizens, or subjects with special status. 230 Th ere were recognized

²²⁴ Mayer (n 8) 151. ²²⁵ Ibid. ²²⁶ E.g. race, ethnicity, gender, or national origin. ²²⁷ Th ese groups included Christians, Jews, Sabi’ans, Manichaens, and others. ²²⁸ AA An-Na’im, Islam and the Secular State: Negotiating the Future of Sharia (Harvard University

Press 2008) 145. ²²⁹ For more on the relationships between these communities see K Armstrong, Islam: A Short

History (Phoenix Press 2002) 18. ²³⁰ K Hashemi, Religious Legal Traditions, International Human Rights Law and Muslim States

(Martinus Nijhoff Brill 2008) 146–74.

3 Islam, the Middle East, and Human Rights Law 45

rules regarding their treatment that included an exemption from military service, and from assuming positions within the executive of a government, and, in some cases, from any governmental post. Th ey were also liable for a special poll tax known as jizya , which symbolized their subordination to Muslim rule, and prop- erty or land owners were liable for an additional kharaj tax. 231 Although subject to Shar î’ ah , they were allowed discretion in practice of their social and religious aff airs, including the freedom to worship. As protected persons, they were also to be treated humanely. 232

Tribal polytheists, referred to as mushrikun , would comprise a second category of ‘other’. 233 Polytheists were accused of shirk (associating other deities with the one God, Allah) and, as such, viewed as enemies and not granted sanctuary in Dar al-Islam . 234 Th eir fate was to convert and, should they refuse, they could be forced to accept Islam, enslaved, or even killed. Although shirk would not be rel- evant to today’s religious groupings, the concept may still be invoked to suggest views that are anti-religious or secular.

Th e last two groups—Islamic minorities and converts to Islam—comprise Muslims who have been subject to social or religious discrimination, the origins of which can be traced to the early formative years of Islam. Th e sectarian affi liations within the Muslim community are primarily, though not exclusively, refl ected in the Shi ‛ a–Sunni divide. 235 As the Sunni schools of thought are adhered to by the majority of Muslims and have been referred to as ‘orthodox’, the teachings from the Shi ‛ a schools have been viewed by some, within Sunni schools and in the West, as Islamic minorities. Within some states, national laws prohibit the propagation of readings of Islam that contrast with the dominant state tradition and, as a result, members of the Shi ‛ a, Ahmadie, Alavie, Sufi communities, and the Republican Brotherhood (in Sudan) have faced persecution through heresy laws. 236

Many converts to Islam, especially during the Rashidun and Umayyad peri- ods, referred to in early texts as mawali , were not Arab. 237 Th eir ‘diff erence’ raised questions regarding their relationship with the religion and ability to properly engage with the texts. 238 Earlier writings suggest that mawali were often con- fi ned to a lower socio-economic status than Arab Muslims. 239 Th e legacy of this

²³¹ M Khadduri, Th e Islamic Law of Nations: Shaybani’s Siyar (Johns Hopkins University Press 1966) 283. ²³² See K Hashemi, ‘Th e Right of Minorities to Identity and the Challenge of Non-Discrimination:

A Study of the Eff ects of Traditional Muslims’ Dhimmah on State Practice’ (2006) 13(1) International Journal on Minority & Group Rights 1–25. ²³³ Martin (n 223) 4. ²³⁴ Ibid. ²³⁵ Ibid 4–5. ²³⁶ Hashemi (n 232) 32–5. ²³⁷ For a discussion of ethnicity in this regard see SS Agha, Th e Revolution which Toppled the

Umayyads: Neither Arab nor ‘Abbasid (Brill 2003) 255–60. ²³⁸ Ibid. ²³⁹ Ibid 241.

Th e Contemporary Middle East46

diff erentiation, while not relevant for our current study, remains signifi cant when applied to, for example, African American converts to Islam.

Th e historical social formation of the concept of minorities within Islam is critical to understanding how these formulations have shaped the discourse and language on minorities within Muslim states. 240 Th e expansion of Islam in early formative periods was accompanied by political, theological, and legal struggles that were refl ected in the religious identities and privileges that would emerge. In the early twentieth century, the rise of secular nationalism and the import of Western constitutional models into the Middle East opposed religious dis- tinction or discrimination and introduced secular public law concepts into the Muslim world. Th ese models displaced some of the laws that distinguished the relationship between state authority and non-Muslim communities and addressed discrimination between Muslim and non-Muslim communities. 241 Although ostensibly a positive development, this must be understood within the larger political context. For much of the region, the shift from Ottoman 242 to European rule signifi ed substituting an illiberal pluralistic system with an ‘imperialism of interference without responsibility, which would neither create nor permit stable and orderly government’. 243 Th e minority rights discourse adopted by European powers ‘became associated with hypocrisy and selfi sh political ambitions’, as they were ‘notably lacking in sympathy for the aspirations for freedom on the part of the Muslim Middle Easterners’ 244 but monitored the treatment of the non-Mus- lim communities in the Middle East and engaged anti-discrimination discourse when profi table. Rather than aiding state formation and bureaucratic develop- ment in the Middle East, these practices contributed to its ‘discontinuity’ and, as Anderson notes:

Repeated changes in administration policies, indeed in the very borders, of the mandates in the Fertile Crescent and frequent eff orts to isolate, aid, and protect favoured communities, from the Christians in Lebanon to the Berbers in Morocco, contributed to administrative instability and exacerbated the discontinuity and lack of legitimacy which characterized European rule in the region during the interwar period. 245

It is perhaps unsurprising then that there remains a ‘historical Muslim ambiva- lence’ 246 to the concept of modern state. Th e resurgence of Islam in the public sphere and the ‘growing demand for the restoration of Shar î’ ah as the public law

²⁴⁰ Although outside the focus of this study, it also has relevance to Muslims living in non-Muslim lands. ²⁴¹ J Starr, Law as a Metaphor: From Islamic Courts to the Palace of Justice (State University of New

York Press 1992) 21–37. ²⁴² Which governed all of the Middle East and North Africa with the exception of the outer Arabian

Peninsula, Morocco, and Iran. ²⁴³ S Spender, ‘Th e Quest for Freedom’ (1964) 22 Encounter 35. ²⁴⁴ Mayer (n 8) 148. ²⁴⁵ L Anderson, ‘Th e State in the Middle East and North Africa’ (1987) 20(1) Comparative Politics 5. ²⁴⁶ An-Na’im (n 158) 8.

4 Constructing Minorities 47

in Muslim countries’ 247 has reopened questions related to the status of non-Mus- lims, including a call in some countries for the reintroduction of the dhimmis’ status. 248 Yet early Shar î’ ah discourse on minorities, both legal and theological, sits uneasily with the secular public law that has developed under most Muslim states and, most problematically, is in contrast to international human rights law obligations of these states. An-Na’im has argued, despite this resurgence and its associated historical baggage, ‘the institution [of the nation state] is now fi rmly and irrevocably established throughout the Muslim world’ and that ‘historical’ Shar î’ ah must adopt and adjust to ‘the reality of the modern nation-state’. 249 Yet, as Anderson has observed, border confl icts and ‘the ambiguities of loyalty and legitimacy characteristic of Middle Eastern politics may indicate the fragility of the present-day states’. 250

Th e fl uidity and conditionality of ‘state’ is, in some ways, mirrored when we engage with minorities. As Martin has observed, whereas historically the dis- tinction of self for non-Muslims from the ‘other’ (e.g. Muslim majority) would have been based on features that fall under a cultural umbrella, such as language, religion, or custom, more recently, minority identities have taken on more ‘dis- tinctive political roles or outlooks’. 251 Whether or not a particular minority group remains a ‘cultural and/or an intellectual force’ or assumes a greater role in the public square and becomes ‘politically mobilized when faced with a particular brand of state nationalism is crucial for understanding current confl icts’. 252

4 Constructing Minorities

Martti Koskenniemi suggests that before we can address the question of what is international law, we must fi rst ask ‘what or whose view of international law is meant’. 253 As we turn to the context within which minority identities are con- structed, we suggest a similar question should be posed. As Ben White notes in his review on minorities in Syria:

By imposing a conceptual category such as ‘minority’ on a society, we may obscure more than we reveal, losing sight of how the social and political groups these categories describe appeared and developed. In doing so, we grant the ‘nation’ a power, in retrospect, that it did not have at the time and gained only through long and painful eff ort. 254

²⁴⁷ Ibid. ²⁴⁸ See JM Otto (ed), Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve

Muslim Countries in Past and Present (Leiden University Press 2010). ²⁴⁹ An-Na’im (n 158) 72. ²⁵⁰ Anderson (n 245) 2. ²⁵¹ M Shatzmiller, ‘Introduction’ in Shatzmiller (n 223) vii. ²⁵² Ibid. ²⁵³ M Koskenniemi, ‘International Law and Hegemony: A Reconfi guration’ (2004) 17(2)

Cambridge Review of International Aff airs 197–218, 199. ²⁵⁴ Ibid.

Th e Contemporary Middle East48

For the purposes of our examination, we have engaged the language of minority rights but, equally, we are mindful of the conceptual problems that White and others have noted. In section 4.1, we will look at some of the defi nitional quan- daries associated with the concept of minorities. As there are substantial writings on the legal framing and provisions of international law on minorities, we include only a very brief overview of the international minority rights legal regime before turning to a review of how states in the region interface with the international human rights regime in section 5.

4.1 Th e concept and defi nition of a ‘minority’

Th e idea of protecting the weak from the strong is a powerful concept that has inspired many sentiments and movements in human history. While much of this history can be defi ned in socio-legal terms as quests through which the powerful have erected structures to protect their own interests, there is a distinct narra- tive of those who have agitated for the interests of the weak in what was other- wise a relentless push for total dominance. 255 Th e growth of minority rights as a discipline owes its heritage to those who struggled to create adequate standards of protection to safeguard non-dominant communities from the excesses and dominance of the majority. Minority rights issues provided an important axis along which public international law itself evolved, with early treaties such as the Promise of St Louis of France (1250) instrumental in highlighting the condition of the Maronites as a legitimate concern of international society. 256

Th e growth of the minority rights discourse as a collection of documents and various types of writings can be tracked back to a range of bilateral treaties throughout the seventeenth and eighteenth centuries, as regional rivals such as Greece and Turkey, Austria and Russia, and Austria and Turkey, came to terms with how to address divided loyalties arising from populations swearing alle- giance to one entity but living as numerically inferior and excluded populations within the territory of another. 257 Th ese concerns paint a sophisticated perspec- tive of minority rights within Europe, but also signal antagonisms between West and East, and clashes between Christianity and Islam, with the latter represented in the form of the Ottoman Empire, which is so central to this work.

²⁵⁵ For a historical source that focusses on this and refl ects the heritage of the discourse see O Janowsky, Nationalities and National Minorities (Th e Macmillan Company 1945). Also see C Macartney, National States and National Minorities (Oxford University Press 1934). ²⁵⁶ General background information on these early treaties can be found in B Heyking, ‘Th e

International Protection of Minorities. Th e Achilles’ Heel of the League of Nations’, Transactions of the Grotius Society , Vol 13, Problems of Peace and War, Papers Read Before the Society in the Year 1929 (1927) 31–51. ²⁵⁷ See the Convention of the Settlement of the Frontier between Greece and Turkey, 1881, avail-

able in M Hurst, Key Treaties of the Great Powers , Vol 2 (David & Charles 1972) 592. Eg the Treaty of Carlowitz, 1699, available in J Fouques-Duparc, La Protection des Minorit é s de Race, de Langue et de Religion 79 (Librairie Dalloz 1922) and the Convention of Constantinople, 1879, available in Hurst, Key Treaties of the Great Powers , Vol 2 (David & Charles 1972) 583.

4 Constructing Minorities 49

Th e minority rights discourse sits at a tangent to the processes of colonization; while Europe was evolving modes of minority protection for specifi c communi- ties who may have come under the aegis of another sovereign due to changing boundaries, this process remained hermeneutically sealed from Europe’s quest for dominance of non-European land and resources. Th us evolving standards of minority rights protection within Europe were not applied to those who came under European jurisdictions as a result of colonization. Colonial activities of European states were beyond the scrutiny of evolving standards at home, and, as a consequence, little was brought to bear on the manner in which territory was illegally acquired and demarcated in Latin America, Africa, and Asia and the Middle East. 258

Th e dominance of European perspectives within the minority rights discourse is striking, even though, in reality, we argue that one of the most sophisticated early sources of minority rights protection existed in the Ottoman Empire’s demarcation of religious autonomy. 259 Yet modern ‘minority rights’, as a concept, or ‘the rights of national minorities’ as it was more commonly referenced, devel- oped its conceptual bases in the experiences of communities that were aff ected by the break-up of the Austro-Hungarian Empire and the reconfi guration of ‘nation- states’ in Europe. By the time of the establishment of the League of Nations, minority rights had taken a relatively central position in Central European poli- tics, as refl ected in its prominence within the heart of the League’s mandate. 260 Yet the failure of the League’s regime to implement minority rights protection was most starkly demonstrated by the events surrounding World War II.

Under the United Nations auspices, protection of minorities is subject to two seemingly confl icting trends. First, the UN Charter placed emphasis on the pre- vention of inter-state confl ict; and secondly, human rights were enshrined as part of the ‘hard-wiring’ of the new system. Th e former signalled that attention had moved away from how states behave toward their populations. Th e principle of state sovereignty, expressed as Article 2(7) of the Charter, drew a protective veil over issues considered as occurring within the domestic jurisdiction of states. 261 Six decades of state practice under the UN era reveals that states avoid scrutiny of their records with respect to minorities by seeking refuge under the principle expressed in this article. Th is protects the state when faced with self-determina- tion movements such as the Palestinians’, Kurds’, and Baluchis’, who perceive themselves as submerged nations living as de facto minorities on their own lands.

²⁵⁸ See S Korman, Th e Right of Conquest: Th e Acquisition of Territory by Force in International Law and Practice (Clarendon Press 1996). ²⁵⁹ See K Hashemi ‘Th e Right of Minorities to Identity and the Challenge of Non-discrimination:

A Study on the Eff ects of Traditional Muslims’ Dhimmah on Current State Practices’ (2006) 13(1) Int’l J on Minority & Group Rights 1–26. ²⁶⁰ See J Stone, ‘Procedure under the Minority Treaties’ (1932) 26(3) American Journal of

International Law 502–13. ²⁶¹ For more on the drafting history and interpretation of Article 2(7) see B Simma, Th e United

Nations Charter: A Commentary (2nd edn, Oxford University Press 2002).

Th e Contemporary Middle East50

Th e second trend emphasizes the inherent dignity and worth of all individuals, and began a process through which states were required to imbibe human rights protection within domestic law to uphold this tenet. With such all-encompassing protection, a lex spexcialis for minorities or other groups became redundant.

While these processes at the UN stalled the development of ‘international’ minor- ity rights law, its infl uence grew steadily as a range of post-colonial countries arrived at independence, as in the Middle East, with inherited populations that were the result of vested colonial boundary-line demarcation, rather than group cohesion. 262 It soon became apparent that such boundary demarcations within post-colonial enti- ties would ultimately determine whether a group existed as a minority or a majority within any given state. 263 Th e extent to which the typical post-colonial state, consist- ing of competing nations and identities, could arrive at inclusive models of protec- tion brought minority issues to the forefront. Today, we argue, global minority rights law as a discourse draws from societal debates and confl icts, rather than solely discus- sions of standards and processes framed at the international level. 264

Th e academic writing on global minority rights law refl ects its Western origins, and subsumes rich and complex discussions concerning nationalism, 265 electoral reform, 266 multiculturalism, 267 accommodation, 268 the role of the individual, 269 and questions of individual versus collective protection. 270 Such discussions are inevitably underpinned by questions concerning ownership of resources. 271 Th e literature includes models for ‘protection oriented’ rights, with great relevance derived in the recent growth of international criminal law and the codifi cation of crimes against humanity, war crimes, and genocide as punishable under the Rome Statute of the International Criminal Court. Th e case law from the Criminal Tribunals on Rwanda and Yugoslavia signpost the extent to which the worst

²⁶² See J Castellino ‘Territorial Integrity and the “Right” to Self-determination: An Examination of the Conceptual Tools’ (2008) 33(2) Brooklyn Journal of International Law 503–68. ²⁶³ Th is issue is addressed in an article by LFE Goldie, ‘Th e Critical Date’ (1963) 12 International

& Comparative Law Quarterly 1251–84. Also see JA Andrews, ‘Th e Concept of Statehood and the Acquisition of Territory in the Nineteenth Century’ (1978) 94 Law Quarterly Review 408–27. ²⁶⁴ See Castellino and Dominguez Redondo (n 10) and J Castellino and DP Keane, Minority Rights

in the Pacifi c: A Comparative Legal Analysis (Oxford University Press 2009). Also see J Castellino (ed), Global Minority Rights (Ashgate 2012). ²⁶⁵ See e.g. M Keating and J McGarry (eds), Minority Nationalism and the Changing International

Order (Oxford University Press 2001). ²⁶⁶ See e.g. W Rule, JF Zimmerman, and BK Johnpoll (eds), Electoral Systems in Comparative

Perspective: Th eir Impact on Women and Minorities (Greenwood Press 1994). ²⁶⁷ See W Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship

(Oxford University Press 2001). ²⁶⁸ See e.g. A Reynolds, Th e Architecture of Democracy: Constitutional Design, Confl ict Management,

and Democracy (Oxford University Press 2002). ²⁶⁹ See e.g. JE Oestreich, ‘Liberal Th eory and Minority Group Rights’ (1999) 21(1) Human Rights

Quarterly 108–32. ²⁷⁰ See V Van Dyke ‘Human Rights and the Rights of Groups’ (1974) 18(4) American Journal of

Political Science 725–41. ²⁷¹ See e.g. I Bannon and P Collier, Natural Resources and Violent Confl ict: Options and Actions

(World Bank 2003).

4 Constructing Minorities 51

excesses during war tend to be perpetrated against minorities. 272 Yet this writing has not always paid adequate attention to the plight of communities beyond European realms. Similarly, the vast literature on the Middle East is not always framed from this perspective. Yet, as we shall detail, minorities within the Middle East remain extremely vulnerable and in fundamental need of protection. 273

Despite the burgeoning importance of international human rights law and the erosion of sovereignty, an important lacuna that remains is the lack of a robust regime guaranteeing the rights of minorities and indigenous peoples. 274 While UN systems have been less concerned with groups in vulnerable positions (empha- sizing the protection of individuals instead), the diff erence in the regimes built to promote women’s and children’s rights on the one hand, and minority and indigenous rights on the other, is stark. Th us despite the growth in the modern universal human rights regime and the creation of a sophisticated interlocking system of international criminal law, the international regime for the protection of minority rights could arguably be deemed stronger in the pre-UN era. 275

Th e literature that widely tackles the issues under consideration here is dominated by discussions as to the precise nature of ‘who’ a ‘minority’ or an ‘indigenous people’ are. 276 Rather than seeking to unpack the defi nitional quanda- ries related to who is a minority, we engage the defi nition of Francesco Capotorti, framed in 1977, with all its conceptual weaknesses. 277 Th us for the purpose of this work a minority can be considered:

. . . [a] group numerically inferior to the rest of the population of a State, in a non-dom- inant position, whose members—being nationals of the State—possess ethnic, religious

²⁷² See WA Schabas, Th e United Nations International Criminal Tribunals: the Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press 2006). ²⁷³ Minority Rights Group International, State of the World’s Minorities (MRG 2010). ²⁷⁴ For a general overview of the minority rights regime at international level see P Th ornberry,

International Law and the Rights of Minorities (Clarendon 1991) and Indigenous Peoples and Human Rights (Manchester University Press 2003); M Weller (ed), Universal Minority Rights (Oxford University Press 2007); N Ghanea and A Xanthaki (eds), Minorities, Peoples and Self-determination: Essays in Honour of Patrick Th ornberry (Martinus Nijhoff 2005); A Xanthaki, Indigenous Rights and UN Standards; Self-Determination, Culture and Land (Cambridge University Press 2007). For a regional level analysis see P Th ornberry and MAM Est é banez, Minority Rights in Europe ( Council of Europe Publishing ); T Malloy, Minority Rights in Europe (Oxford University Press 2005); Castellino and Dominguez Redondo (n 10); and J Castellino and D Keane, Indigenous and Minority Rights in the Pacifi c: A Comparative Legal Analysis (Oxford University Press 2009). ²⁷⁵ J Castellino, ‘Th e Protection of Minorities and Indigenous Peoples in International Law: A

Comparative Temporal Analysis’ (2009) 15(4) International Journal on Minority & Group Rights 393–422. ²⁷⁶ J Pejic, ‘Minority Rights in International Law’ (1997) 19 Human Rights Quarterly 666;

PV Ramaga, ‘Th e Group Concept in Minority Protection’ (1993) 15 Human Rights Quarterly 575; NS Rodley, ‘Conceptual Problems in the Protection of Minorities: International Legal Developments’ (1995) 17 Human Rights Quarterly 48; J Packer, ‘On the Defi nition of Minorities’ in J Packer and K Muntti (eds), Th e Protection of Ethnic And Linguistic Minorities in Europe ( Å bo Akademi Institute of Human Rights 1993) 23; O Andrysek, Report on the Defi nition of Minorities (Netherlands Institute of Human Rights, SIM Special No 8 1989). ²⁷⁷ See MJ Aukerman, ‘Defi nitions and Justifi cations: Minority and Indigenous Rights in a Central/

Eastern European Context’ (2000) 22 Human Rights Quarterly 1011.

Th e Contemporary Middle East52

or linguistic characteristics diff ering from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, religion or language. 278

We apply this defi nition to our work with three caveats. First, in our analysis, we have found the issue of numerical inferiority to be only one of the factors in how we have examined the minority question. Our narration of the history of the region demonstrates the strong impact that smaller communities have had, often in successfully seizing and maintaining political power. Th us rather than numerical strength, when we speak of minorities, our primary focus is the dis- tance between a community and sites of power. Th e subsequent chapters in Part I explore this in relation to particular communities, which are then interrogated further in the chapters on Iraq, Syria, and Lebanon in Part II. Th e etymology of the term ‘minority’ is relative. We argue, using the backdrop of the (minor- ity) Sunni and Alawite domination in Iraq and Syria respectively, that numerical strength is only one element of this relativity, and what the Middle East demon- strates is that numerical strength has not, by itself, been the weightiest factor in this equation.

Secondly, in the context of the issue of nationality, the restrictive approach of law would require that ‘minorities’ be nationals of a state. Th us international minority rights law has often been concerned with the treatment of minority groups by a state, based on the accepted principle that distinguishing between nationals and non-nationals is a prerogative of state sovereignty. Th e allowable diff erentiation of a state’s treatment of citizen and non-citizen is refl ected in human rights law 279 but has subsequently been constricted. 280 Further, the tradi- tional defi nition of ‘national’ minorities has not been useful beyond the borders of Europe since this only accords status to groups living in one state with the nationality of another. While ‘national’ minorities are often as vulnerable as non- national minorities, the approach taken here is for a broader reading to include non-national groups. Th is is particularly important since in the Middle Eastern context there are many individuals and communities who are deprived of nation- ality, or who, as migrant workers, have no rights to nationality in the country in which they reside. Under the strict defi nition of minority these groups would not be included, even though the claim of the former is signifi cantly stronger than

²⁷⁸ F Capotorti, Special Rapporteur, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities , UN Doc E/CN.4/Sub.2/384/Rev.1 (1977). ²⁷⁹ See the International Convention on the Elimination of All Forms of Racial Discrimination

(hereinafter ‘the Race Convention’), opened for signature 7 March 1966, 660 UNTS 195, at Article 1(2). ²⁸⁰ Th e Committee for the Elimination of Racial Discrimination (hereinafter CERD) is the

monitoring body for the Race Convention. See CERD General Recommendation XI (42nd ses- sion, 1993) and General Recommendation 30 Discrimination against non-citizens (64th session, 2004).

4 Constructing Minorities 53

that of the latter, who are treated in law as temporary workers with no rights to dominion.

A fi nal issue that arises, which is addressed only tangentially in this work, is the relationship between a ‘minority’ and ‘indigenous peoples’. 281 From a politi- cal perspective the discourse of indigeneity when articulated clearly, has many advantages. It draws attention to the group’s status as ‘discoverers’ of the land, with inherent rights to it under the natural law principle of occupation, and the public international law principles concerning the occupation of terra nullius (unoccupied territory). 282 Yet the discussion of indigeneity inevitably raises com- plex questions of history that are diffi cult to unravel from this distance. Th e loose defi nition proposed in international human rights law for indigenous peoples by Martinez Cobo is as problematic as the Caportorti defi nition. 283 It is generally accepted that indigenous peoples have all the rights that minorities have, but may in addition also have the right to self-determination with all its attendant problems of interpretation and application. 284 In addition, it is clear that prior to Cobo’s important study there was little attention paid within the emerging regime for human rights to indigenous rights issues, and thus in previous periods ‘indigenous peoples’ would have been subsumed under the general conceptual banner of ‘minorities’, problematic as this may be.

Th ese defi nitional quandaries—the ‘what or whose view’—weigh heavily in the literatures, cross-cutting disciplines. We will not resolve these here. Rather woven throughout our review is an interrogation of the process by which we impose the conceptual category of a ‘minority’ on a society. As we will argue, the status of minority is one conferred, not adopted by the communities in question and is refl ective of how groups relate to sites of power. Th is may well disrupt more conventional analyses of what comprises a ‘minority’ or ‘indigenous peo- ple’ but equally, we think it may also be more refl ective of the realities of these communities.

In section 5 we will interrogate the commonly held perspective that the states under review are antagonistic in their behaviour towards international human

²⁸¹ See T Makonen, Identity, Diff erence and Otherness: Th e Concepts of ‘People’, ‘Indigenous People’ and ‘Minority’ in International Law (Erik Castren Institute, University of Helsinki 2000); also see JR Valentine, ‘Toward a Defi nition of National Minority’ (2004) 32 Denver Journal of International Law & Policy 445–74. ²⁸² See J Waldron, ‘Indigeneity? First Peoples and Last Occupancy’ (2003) 1 New Zealand Journal of

Public International Law 56–82. ²⁸³ JM Cobo (Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination &

Protection of Minorities), Study on the Problem of Discrimination against Indigenous Populations , UN Doc E/CN.4/Sub.2/1986/Add.4. ²⁸⁴ Xanthaki addresses this at some lengths in her monograph: A Xanthaki, Indigenous Rights

and United Nations Standards: Self-determination, Culture, Land (Cambridge University Press 2007) 131–95. Also see J Castellino, ‘Conceptual Diffi culties and the Right to Indigenous Self- determination’ in N Ghanea and A Xanthaki (eds), Minorities, Peoples and Self-determination (Martinus Nijhoff 2005) 55–74; and J Castellino and J Gilbert, ‘Self-determination, Indigenous Peoples and Minorities’ (2003) 3 Macquarie Law Journal Special Issue: Self-determination 155–78.

Th e Contemporary Middle East54

rights law, which if true would have a direct eff ect on the extent to which they were willing and able to design mechanisms to protect and promote the rights of minorities.

5 Approach to Human Rights by Middle Eastern States

Challenges to the universality of the rights regime are raised frequently when Middle Eastern states interface with international human rights mechanisms and, therefore, merit some review. As noted in the review of minority rights in Asia, the emergence of a specifi c discourse of ‘Asian values’ cannot solely be explained within a relativist framework or be ‘used by authoritarian regimes for self serving ends’. 285 Rather, ‘philosophical and nuanced accounts highlight that, whatever Asian governments’ political motivations, there are legitimate diff erences in values at stake, deriving from “Confucianism and Islam [that] are not merely ways of thinking about things, they are ways of living”’. 286 Th e review did not focus on states in West Asia (or the Asian Middle East), though there remains a shared narrative that frames human rights as a post-colonial project, and suggests a hegemonic control of the rights regime by the ‘West’, both of which provide a framework within which the language of universality is contested.

Conventional readings of public international law suggest a universality of norms, while competing analyses posit that international law has been used to establish and perpetuate the global dominance of North over South; Western hegemony over the Oriental ‘other’. 287 In the latter analysis, the shaping of international human rights law can only be understood against the historical, socio-economic, and political backdrop of the European colonial project. Th ese arguments do raise signifi cant and credible critiques of the international human rights machinery. Th at said, reading in an Orientalist approach to the concept of universality—that is, imposing a Western narrative of human rights on to the East—at the very least misunderstands and, at worst, distorts Said’s critique of the otherness of this thesis.

An objective assessment of the development and implementation of human rights law yields a more complicated record. Th e development and formulation of the UN human rights system has not occluded the input of Middle Eastern and other predominately Muslim states and their representatives. Waltz’s review of Muslim state participation in the drafting of the Universal Declaration of Human Rights challenges the perception that the development of these rights

²⁸⁵ Castellino and Dominguez Redondo (n 10) 17. ²⁸⁶ Ibid 18, partially quoting SJ Hood, ‘Rights Hunting in Non-Western Traditions’ in LS Bell, AJ

Nathan, and I Peleq (eds) Negotiating Culture and Human Rights (New York: Columbia Unversity Press 2001) 96–124. ²⁸⁷ For references for TWAIL see n 6.

5 Approach to Human Rights by Middle Eastern States 55

and principles was somehow exclusive to the ‘West’. 288 In fact, Waltz’s review sug- gests that, far from adversarial, Muslim and other Asian states participated fully in the drafting and, where objections were raised from representatives of Muslim states, the characterization of these as ‘Islamic’ challenges did not fully capture the essence or underpinnings of the debates at the time of the drafting. 289 Similarly, when reviewing current state practice and compliance with international human rights machinery, analysis, which emphasizes the role of Islamic law and therefore ostensibly the exceptionalism of the Middle East and Muslim states, often diverts attention from a more accurate accounting of state power politics as it relates to the application or interference of minority rights.

5.1 State participation in the UN human rights regimes

Although many states within our territorial ambit apply a culturally relativistic approach to their engagement with the human rights discourse, this has not pre- cluded their participation in drafting and adopting international human rights treaties and declarations.

With regard to the core human rights treaties, a majority of the states within the territorial ambit of the Middle East as defi ned earlier, have signed and ratifi ed or acceded to the two International Covenants on Civil and Political (ICCPR) 290 and Economic, Social and Cultural Rights (ICESCR), respectively. 291 Th ere is also wide participation in the International Convention on the Elimination of all forms of Racial Discrimination (CERD), 292 the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 293 the Convention on the Rights of a Child (CRC), 294 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 295 A smaller number have ratifi ed and/or signed three other core treaties: the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CRMW), 296 the Convention on the Rights of Persons with

²⁸⁸ S Waltz, ‘Universal Human Rights: Th e Contribution of Muslim States’ (2004) 26(3) Human Rights Quarterly 799–844. ²⁸⁹ Ibid 800. ²⁹⁰ GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966), 999 UNTS

171, entered into force 23 March 1976. ²⁹¹ GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 49, UN Doc A/6316 (1966), 993 UNTS

3, entered into force 3 January 1976. ²⁹² 660 UNTS 195, entered into force 4 January 1969. ²⁹³ GA Res 34/180, 34 UN GAOR Supp (No 46) at 193, UN Doc A/34/46, entered into force 3

September 1981. ²⁹⁴ GA Res 44/25, annex, 44 UN GAOR Supp (No 49) at 167, UN Doc A/44/49 (1989), entered

into force 2 September 1990. ²⁹⁵ GA Res 39/46, annex, 39 UN GAOR Supp (No 51) at 197, UN Doc A/39/51 (1984), entered

into force 26 June 1987. ²⁹⁶ GA Res 45/158, annex, 45 UN GAOR Supp (No 49A) at 262, UN Doc A/45/49 (1990),

entered into force 1 July 2003.

Th e Contemporary Middle East56

Disabilities (CRPD), 297 and the International Convention for the Protection of All Persons from Enforced Disappearance. 298 Within our territorial ambit of 24 states, ratifi cation of accession in descending order is as follows: 23 CRC; 299 23 CERD; 300 21 CEDAW; 301 19 ICCPR; 19 ICESCR; 302 18 CAT; 303 9 CRPD; 304 6 ICRMW. 305 Five out of our 24 states have signed the International Convention for the Protection of All Persons from Enforced Disappearance, though none have to date ratifi ed. 306 Th ese fi gures largely mirror the overall ranking of treaties at the universal level. 307

Th ere are a number of Optional Protocols attached to the core treaties. Th ree of these, the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP1), 308 the Optional Protocol to the International Covenant on Economic Social and Cultural Rights (ICESCR-OP1), 309 and the Optional Protocol to the Convention on the Elimination of Discrimination Against Women (OP-CEDAW), 310 relate to procedures for individual communications

²⁹⁷ GA Res 61/106, Annex I, UN GAOR, 61st Sess, Supp (No 49), at 65, UN Doc A/61/49 (2006), entered into force 3 May 2008. ²⁹⁸ GA Res 61/177, UN Doc A/RES/61/177 (2006), entered into force 23 December 2010. ²⁹⁹ Somalia signed the Convention in 2002 but remains the only state in our territorial grouping

that has not ratifi ed. ³⁰⁰ Th e sole exception to the CERD is Djibouti. ³⁰¹ Th ree Middle East states have not signed the CEDAW: Iran, Somalia, and Sudan. ³⁰² Th e Comoros Islands have signed but not ratifi ed. Oman, Qatar, Saudi Arabia, and UAE are not

parties to either Convention. ³⁰³ Oman, the United Arab Emirates, Iran, and Iraq have not signed or ratifi ed CAT; Sudan signed

in 1986 and the Comoros Islands in 2000 but neither state has yet to ratify. ³⁰⁴ Ratifi cation or accession states are: Algeria, Egypt, Iran, Jordan, Oman, Qatar, Syria, Tunisia,

and Lebanon. Th e CRPD, along with the International Convention for the Protection of All Persons from Enforced Disappearance are two of the most recent Human Rights Treaties. Like the International Convention for the Protection of All Persons from Enforced Disappearance, the CRPD was adopted in December 2006 but reached the requisite number of state parties and was entered into force in May 2008. ³⁰⁵ Ratifi cation or accession states are: Algeria, Egypt, Libya, Mauritania, Morocco, and Syria. ³⁰⁶ Signatory states are: Algeria, Comoros Islands, Lebanon, Morocco, and Tunisia. It should be

noted that this treaty was adopted in December 2006 and is not yet in force, having secured (at the time of writing) 81 signatories but only 18 parties to the Convention. ³⁰⁷ At the universal level, the rankings are almost the same. Th e only exception is that CERD

and CEDAW are inverted; at the international level, CEDAW has secured a larger number of state parties. ³⁰⁸ GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 59, UN Doc A/6316 (1966), 999 UNTS

302, entered into force 23 March 1976. Only four states in the region—Algeria, Djibouti, Libya, and Somalia—have signed and acceded to the ICCPR-OP1. ³⁰⁹ GA Res 63/117 (2008). None of the 24 states have signed the ICESCR-OP1. ³¹⁰ GA Res 54/4, annex, 54 UN GAOR Supp (No 49) at 5, UN Doc A/54/49 (Vol I) (2000),

entered into force 22 December 2000. Only two states in the region—Libya and Tunisia—have signed and acceded to the CEDAW-OP1.

5 Approach to Human Rights by Middle Eastern States 57

with treaty-monitoring bodies. Additionally, there is an additional Optional Protocol attached to the ICCPR that deals with the abolition of the death pen- alty (OP2). 311 Th e Convention on the Rights of a Child has two additional pro- tocols that endeavour to regulate, respectively, the involvement of children in armed confl ict (OP-CRC-AC) 312 and the sale of children, child prostitution, and child pornography (OP-CRC-SC). 313 Finally, the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT) 314 provides a monitoring mechanism, allowing access by independent international and national bodies to places where people are deprived of their liberty.

Ratifi cation or accession to such documents requires contracting state parties to abide with the principles enumerated, and the reporting systems. However, several problems of compliance are evident globally in the reservations and dec- larations to treaties, which often nullify specifi c treaty obligations, in the engage- ment with reporting mechanisms to the treaty-based organs set up to monitor compliance, and in participation in monitoring mechanisms themselves.

5.2 Participation in the treaty-based system: a brief analysis

When reviewing state practice in the Middle East, there are, as noted, principles and objectives of modern international law that are incompatible with particu- lar readings of Islamic law. Reservations and/or declarations entered when states ratify international human rights treaties mark, in part, these diff erences. Save for the provisions of the Vienna Convention on the Law of Treaties 1969 315 and language refl ected in Article 20(2) CERD, Article 28(2) CEDAW, Article 51(2) CRC, and Article 91(2) ICRMW, which prevents reservations that are ‘incom- patible with the objects and purpose of the Convention[s]’, all of the core trea- ties discussed allow reservations and declarations or provide interpretations that

³¹¹ GA Res 44/128, annex, 44 UN GAOR Supp (No 49) at 207, UN Doc A/44/49 (1989), entered into force 11 July 1991. Djibouti is the only state, amongst the 24 designated, to have signed and acceded to ICCPR-OP2. ³¹² GA Res 54/263, Annex I, 54 UN GAOR Supp (No 49) at 7, UN Doc A/54/49 (Vol III)

(2000), entered into force 12 February 2002. Fifteen of the 24 states have ratifi ed or acceded to the OP-CRC-AC. Somalia, Lebanon, and Djibouti have signed but not ratifi ed or acceded. Th ere are six states who have not signed: Comorros, Iran, Mauritania, Saudi Arabia, Sudan, and UAE. ³¹³ GA Res 54/263, Annex II, 54 UN GAOR Supp (No 49) at 6, UN Doc A/54/49 (Vol III)

(2000), entered into force 18 January 2002. Th e OP-CRC-SC has secured the largest number of state parties (20 of the 24). Djibouti signed in 2006 but has not yet ratifi ed. Only Saudi Arabia, Somalia, and the UAE have not signed. ³¹⁴ GA Res A/RES/57/199, entered into force 22 June 2006 (reprinted in 42 ILM 26 (2003)).

OP-CAT has attracted only one state party—Lebanon—within the 24 states examined. ³¹⁵ Done at Vienna on 23 May, 1969, entered into force 27 January 1980, UNTS Vol 1155, 331.

Th e Contemporary Middle East58

indicate how a given state interprets a particular provision at the time of adop- tion. Although not region specifi c, states in the Middle East have engaged these facilities with a signifi cant number of states entering reservations, declarations, or interpretations. 316

A majority of the reservations or declarations attached to the core treaties fall into one of two basic categories: those with no signifi cant domestic human rights legal eff ect as to the application of the particular treaty, and those that relate to procedural matters. Of the states reviewed, the fi rst category is dominated by reservations or declarations relating to non-recognition of another state: which for these states, is specifi c to the non-recognition of Israel. 317 Th e second category relates to reservations to submission of disputes to the International Court of Justice. 318 Th ere are two other categories that capture the remaining reservations and declarations. Th e fi rst relates to conditionalities attached to specifi c obliga- tions raised by the treaty, which limits the application of the treaty to what is provided for within domestic law. Th e fi nal category applies Islamic formulas to restrict rights, either through a general declaratory statement or to statements specifi cally attached to particular core rights. Th ese fi nal two categories—where treaty reservations or declarations are made conditional and subject to domestic law or are interpretive 319 on (the basis of ) purportedly Shar î’ ah standards—are particularly relevant to this study. 320

³¹⁶ See WA Schabas, ‘Reservations to the Convention on the Rights of the Child’ (1996) 18(2) Human Rights Quarterly 472–91. ³¹⁷ With regard to non-recognition, the language in the reservation by Bahrain to CERD is typical.

It states: ‘Moreover, the accession by the State of Bahrain to the said Convention shall in no way con- stitute recognition of Israel or be a cause for the establishment of any relations of any kind therewith.’ Iraq, Kuwait, Libya, Syria, UAE, and Yemen have all entered similar reservations. ³¹⁸ Under CERD, reservations taken to Article 22, which deal with the submission of disputes

to the ICJ have been undertaken by: Afghanistan, Bahrain, Egypt, Israel, Kuwait, Lebanon, Libya, Morocco, Saudi Arabia, and Yemen. Under the ICRMW, reservations taken to Article 92 (ICJ) have been undertaken by Algeria and Morocco. ³¹⁹ It is important to note that the term ‘interpretative’ here is attached to those reservations or

declarations to which state compliance to a particular right is to be interpreted through Shar î’ ah . At times, when states enter ‘interpretative declarations’, it conforms to this defi nition. However, some states have also used this phrase when endeavouring to ensure that their own particular domestic legislation is read as in conformity with the requirements of a particular right. For example, see the Egyptian interpretative declaration to the CRPD cited in n 304. ³²⁰ As will be apparent in the formulation of the reservation and declaration language, there is some

fl uidity between these last two categories. Some of the reservations entered by states attach a condi- tionality based on domestic law (giving preference to domestic provisions over the treaty provisions). Other formulations give preference to Islamic law. In some cases, formulations of Islamic law are con- tained in domestic law, making the divisions between these two categories somewhat artifi cial.

5 Approach to Human Rights by Middle Eastern States 59

Th ese conditional attachments are refl ected in the following list: Afghanistan, CRC; 321 Kuwait (ICCPR, 322 CEDAW, 323 CRC); 324 Algeria (CRC, 325 ICCPR, 326

³²¹ Afghanistan entered a broad declaration, which is both conditional and interpretive: ‘Th e Government of the Republic of Afghanistan reserves the right to express, upon ratifying the Convention, reservations on all provisions of the Convention that are incompatible with the laws of Islamic Shari’a and the local legislation in eff ect.’ ³²² Kuwait entered a number of conditional reservations/declaration to the ICCPR. Interpretative

declaration regarding Article 2, paragraph 2, and Article 3: ‘Although the Government of Kuwait endorses the worthy principles embodied in article 2, paragraph 2, and article 3 as consistent with the provisions of the Kuwait Constitution in general and of its article 29 in particular, it declares that the rights to which the articles refer must be exercised within the limits set by Kuwaiti law.’ Interpretative declaration regarding Article 9: ‘Th e Government of Kuwait declares that while Kuwaiti legislation safeguards the rights of all Kuwaiti and non-Kuwaiti workers, social security provisions apply only to Kuwaitis.’ Reservation concerning Article 8, paragraph 1(d): ‘Th e Government of Kuwait reserves the right not to apply the provisions of article 8, paragraph 1 (d).’ ³²³ Article 9, paragraph 2: ‘Th e Government of Kuwait reserves its right not to implement the pro-

vision contained in article 9, paragraph 2, of the Convention, inasmuch as it runs counter to the Kuwaiti Nationality Act, which stipulates that a child’s nationality shall be determined by that of his father.’ ³²⁴ Upon signature, Kuwait entered a reservation that was both conditional and interpretive:

‘[Kuwait expresses] reservations on all provisions of the Convention that are incompatible with the laws of Islamic Shari’a and the local statutes in eff ect.’ Upon ratifi cation, Kuwait entered a declaration to Article 7: ‘Th e State of Kuwait understands the concepts of this article to signify the right of the child who was born in Kuwait and whose parents are unknown (parentless) to be granted the Kuwaiti nationality as stipulated by the Kuwaiti Nationality Laws.’ ³²⁵ As with a number of other states in the region, Algeria’s reservations are both conditional (based

on domestic law) and interpretive (based on Shar î’ ah ) as Algeria’s legal system is crafted along particu- lar formulations of Shar î’ ah . Declarations and reservations to the CRC are as follows. Interpretative declarations: Article 14, paragraphs 1 and 2: ‘Th e provisions of paragraphs 1 and 2 of article 14 shall be interpreted by the Algerian Government in compliance with the basic foundations of the Algerian legal system, in particular: With the Constitution, which stipulates in its article 2 that Islam is the State religion and in its article 35 that “there shall be no infringement of the inviolability of the freedom of conviction and the inviolability of the freedom of opinion”; With Law No. 84-11 of 9 June 1984, comprising the Family Code, which stipulates that a child’s education is to take place in accordance with the religion of its father.’ Articles 13, 16 and 17: ‘Articles 13, 16 and 17 shall be applied while taking account of the interest of the child and the need to safeguard its physical and mental integrity. In this framework, the Algerian Government shall interpret the provisions of these articles while taking account of: Th e provisions of the Penal Code, in particular those sections relat- ing to breaches of public order, to public decency and to the incitement of minors to immorality and debauchery; Th e provisions of Law No. 90-07 of 3 April 1990, comprising the Information Code, and particularly its article 24 stipulating that “the director of a publication destined for children must be assisted by an educational advisory body”.’ ³²⁶ Under item 4 of the Interpretative Declaration to the ICCPR/ICESCR, it states: ‘Th e Algerian

Government interprets the provisions of article 23, paragraph 4, of the Covenant on Civil and Political Rights regarding the rights and responsibilities of spouses as to marriage, during marriage and at its dissolution as in no way impairing the essential foundations of the Algerian legal system.’

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CEDAW); 327 Egypt (CRPD); 328 Israel (CEDAW); 329 Iran (CRPD); 330 Morocco

³²⁷ Algeria has made the following conditional reservations. Article 2: ‘Th e Government of the People’s Democratic Republic of Algeria declares that it is prepared to apply the provisions of this arti- cle on condition that they do not confl ict with the provisions of the Algerian Family Code.’ Article 9, paragraph 2: ‘Th e Government of the People’s Democratic Republic of Algeria wishes to express its reservations concerning the provisions of article 9, paragraph 2, which are incompatible with the provisions of the Algerian Nationality Code and the Algerian Family Code.’ Th e Algerian Nationality Code allows a child to take the nationality of the mother only when: ‘Th e father is either unknown or stateless; Th e child is born in Algeria to an Algerian mother and a foreign father who was born in Algeria.’ Moreover, a child born in Algeria to an Algerian mother and a foreign father who was not born on Algerian territory may, under Article 26 of the Algerian Nationality Code, acquire the nationality of the mother providing the Ministry of Justice does not object. Article 41 of the Algerian Family Code states that a child is affi liated to its father through legal marriage. Article 43 of that Code states that ‘the child is affi liated to its father if it is born in the 10 months following the date of separation or death’. Article 15, paragraph 4: ‘Th e Government of the People’s Democratic Republic of Algeria declares that the provisions of article 15, paragraph 4, concerning the right of women to choose their residence and domicile should not be interpreted in such a manner as to contradict the provisions of chapter 4 (art. 37) of the Algerian Family Code.’ Article 16: ‘Th e Government of the People’s Democratic Republic of Algeria declares that the provisions of article 16 concerning equal rights for men and women in all matters relating to marriage, both during marriage and at its dissolu- tion, should not contradict the provisions of the Algerian Family Code.’ ³²⁸ Declaration to the CRPD reads: ‘Th e Arab Republic of Egypt declares that its interpretation of

article 12 of the International Convention on the Protection and Promotion of the Rights of Persons with Disabilities, which deals with the recognition of persons with disabilities on an equal basis with others before the law, with regard to the concept of legal capacity dealt with in paragraph 2 of the said article, is that persons with disabilities enjoy the capacity to acquire rights and assume legal responsi- bility (‘ahliyyat al-wujub) but not the capacity to perform (‘ahliyyat al-’ada’), under Egyptian law.’ ³²⁹ Israel has entered the following conditional reservations: ‘Th e State of Israel hereby expresses

its reservation with regard to article 7 (b) of the Convention concerning the appointment of women to serve as judges of religious courts where this is prohibited by the laws of any of the religious com- munities in Israel. Otherwise, the said article is fully implemented in Israel, in view of the fact that women take a prominent part in all aspects of public life’; ‘Th e State of Israel hereby expresses its res- ervation with regard to article 16 of the Convention, insofar as the laws of personal status binding on the several religious communities in Israel do not conform with the provisions of that article.’ ³³⁰ Iran instituted a conditional declaration on Article 46, which states: ‘with regard to Article 46,

the Islamic Republic of Iran declares that it does not consider itself bound by any provisions of the Convention, which may be incompatible with its applicable rules’.

5 Approach to Human Rights by Middle Eastern States 61

(CEDAW, 331 CRC); 332 Oman (CEDAW, 333 CRC); 334 Qatar (CEDAW); 335

³³¹ Article 2: ‘Th e Government of the Kingdom of Morocco expresses its readiness to apply the provisions of this article provided that: Th ey are without prejudice to the constitutional require- ments that regulate the rules of succession to the throne of the Kingdom of Morocco; Th ey do not confl ict with the provisions of the Islamic Shar î’ ah .’ It should be noted that certain of the provi- sions contained in the Moroccan Code of Personal Status according women rights that diff er from the rights conferred on men may not be infringed upon or abrogated because they derive primarily from the Islamic Shar î’ ah , which strives, among its other objectives, to strike a balance between the spouses in order to preserve the coherence of family life. Article 15, paragraph 4: ‘Th e Government of the Kingdom of Morocco declares that it can only be bound by the provisions of this paragraph, in particular those relating to the rights of women to choose their residence and domicile, to the extent that they are not incompatible with articles 34 and 36 of the Moroccan Code of Personal Status.’ Reservations to Article 9, paragraph 2: ‘Th e Government of the Kingdom of Morocco makes a res- ervation with regard to this article in view of the fact that the Law of Moroccan Nationality permits a child to bear the nationality of its mother only in the cases where it is born to an unknown father, regardless of place of birth, or to a stateless father, when born in Morocco, and it does so in order to guarantee to each child its right to a nationality.’ Further, a child born in Morocco of a Moroccan mother and a foreign father may acquire the nationality of its mother by declaring, within two years of reaching the age of majority, its desire to acquire that nationality, provided that, on making such declaration, its customary and regular residence is in Morocco. ³³² Conditional and interpretive Declarations by Morocco to the CRC are: ‘Th e Government of the

Kingdom of Morocco interprets the provisions of article 14, paragraph 1, of the Convention on the Rights of the Child in the light of the Constitution of 7 October 1996 and the other relevant provi- sions of its domestic law, as follows: Article 6 of the Constitution, which provides that Islam, the State religion, shall guarantee freedom of worship for all. Article 54, paragraph 6, of Act 70-03 (the Family Code), which stipulates that parents owe their children the right to religious guidance and education based on good conduct.’ ³³³ Th e Sultanate of Oman makes reservation to: ‘All provisions of the Convention not in accord-

ance with the provisions of the Islamic Shar î’ ah and legislation in force in the Sultanate of Oman; Article 9, paragraph 2, which provides that States parties shall grant women equal rights with men with respect to the nationality of their children; Article 15, paragraph 4, which provides that States parties shall accord to men and women the same rights with regard to the law relating to the move- ment of persons and the freedom to choose their residence and domicile; Article 16, regarding the equality of men and women, and in particular paragraph 1, subparagraphs (a), (c) and (f ) (regarding adoption).’ ³³⁴ Th e second reservation by Oman to the CRC is both conditional and interpretive and states:

‘A reservation is entered to all the provisions of the Convention that do not accord with Islamic law or the legislation in force in the Sultanate and, in particular, to the provisions relating to adoption set forth in its article 21.’ Reservations 3–5 are constructed more as conditional, although their for- mulations in the referenced domestic law are clearly refl ective of Islamic Shar î’ ah ; these are: ‘3. Th e provisions of the Convention should be applied within the limits imposed by the material resources available. 4. Th e Sultanate considers that article 7 of the Convention as it relates to the nationality of a child shall be understood to mean that a child born in the Sultanate of unknown parents shall acquire Oman nationality, as stipulated in the Sultanate’s Nationality Law. 5. Th e Sultanate does not consider itself to be bound by those provisions of article 14 of the Convention that accord a child the right to choose his or her religion or those of its article 30 that allow a child belonging to a religious minority to profess his or her own religion.’ ³³⁵ Reservations: ‘1. Article 2 (a) in connection with the rules of the hereditary transmission of

authority, as it is inconsistent with the provisions of article 8 of the Constitution. 2. Article 9, para- graph 2, as it is inconsistent with Qatar’s law on citizenship. 3. Article 15, paragraph 1, in connection

Th e Contemporary Middle East62

Syria (CRC, 336 CRPD); 337 Tunisia, (CEDAW, 338 CRC); 339 UAE (CEDAW, 340 CRC). 341

with matters of inheritance and testimony, as it is inconsistent with the provisions of Islamic law. 4. Article 15, paragraph 4, as it is inconsistent with the provisions of family law and established practice. 5. Article 16, paragraph 1 (a) and (c), as they are inconsistent with the provisions of Islamic law. 6. Article 16, paragraph 1 (f ), as it is inconsistent with the provisions of Islamic law and family law. Th e State of Qatar declares that all of its relevant national legislation is conducive to the interest of promoting social solidarity . . . 3. In accordance with article 29, paragraph 2, of the Convention, the State of Qatar declares, under the terms of that text, that it does not consider itself bound by paragraph 1 of that article.’ Declaration: ‘1. Th e Government of the State of Qatar accepts the text of article 1 of the Convention provided that, in accordance with the provisions of Islamic law and Qatari legislation, the phrase “irrespective of their marital status” is not intended to encourage family rela- tionships outside legitimate marriage. It reserves the right to implement the Convention in accord- ance with this understanding. 2. Th e State of Qatar declares that the question of the modifi cation of “patterns” referred to in article 5 (a) must not be understood as encouraging women to abandon their role as mothers and their role in child-rearing, thereby undermining the structure of the family.’ ³³⁶ Syria’s reservations to the CRC are both conditional and interpretative and state: ‘Th e Syrian

Arab Republic has reservations on the Convention’s provisions which are not in conformity with the Syrian Arab legislations and with the Islamic Shar î’ ah ’s principles, in particular, the content of article (14) related to the Right of the Child to the freedom of religion, and articles 20 and 21 concerning the adoption.’ ³³⁷ Syria entered a conditional reservation to Article 12 of the CRPD which states: ‘We signed today

on the basis of the understanding contained in the letter dated 5 December 2006 from the Permanent Representative of Iraq to the United Nations addressed, in his capacity as Chairman of the Group of Arab States for that month, to the Chairman of the Committee, which contains the interpreta- tion of the Arab Group concerning article 12 relating to the interpretation of the concept of “legal capacity”.’ ³³⁸ General declaration: ‘Th e Tunisian Government declares that it shall not take any organizational

or legislative decision in conformity with the requirements of this Convention where such a decision would confl ict with the provisions of chapter I of the Tunisian Constitution.’ Reservation concerning Article 9, paragraph 2: ‘Th e Tunisian Government expresses its reservation with regard to the provi- sions in article 9, paragraph 2 of the Convention, which must not confl ict with the provisions of chapter VI of the Tunisian Nationality Code.’ Reservation concerning Article 16, paragraphs (c), (d), (f ), (g), and (h): ‘Th e Tunisian Government considers itself not bound by article 16, paragraphs (c), (d) and (f ) of the Convention and declares that paragraphs (g) and (h) of that article must not confl ict with the provisions of the Personal Status Code concerning the granting of family names to children and the acquisition of property through inheritance.’ Declaration concerning Article 15, paragraph 4: ‘In accordance with the provisions of the Vienna Convention on the Law of Treaties, dated 23 May 1969, the Tunisian Government emphasizes that the requirements of article 15, paragraph 4, of the Convention on the Elimination of All forms of Discrimination against Women, and particularly that part relating to the right of women to choose their residence and domicile, must not be interpreted in a manner which confl icts with the provisions of the Personal Status Code on this subject, as set forth in chapters 23 and 61 of the Code.’ ³³⁹ Declaration states: ‘Th e Government of the Republic of Tunisia declares that the Preamble to

and the provisions of the Convention, in particular article 6, shall not be interpreted in such a way as to impede the application of Tunisian legislation concerning voluntary termination of pregnancy.’ ³⁴⁰ Conditional Reservation on Article 9, which reads: ‘Th e United Arab Emirates, considering the

acquisition of nationality an internal matter which is governed, and the conditions and controls of which are established, by national legislation makes a reservation to this article and does not consider itself bound by the provisions thereof.’ ³⁴¹ Conditional Reservations to the CRC are attached to Article 7: ‘Th e United Arab Emirates is of

the view that the acquisition of nationality is an internal matter and one that is regulated and whose terms and conditions are established by national legislation.’ And Article 17: ‘While the United Arab Emirates appreciates and respects the functions assigned to the mass media by the article, it shall be

5 Approach to Human Rights by Middle Eastern States 63

In a number of these cases, reservations were made to a specifi c substantive provision raising questions as to whether the reservation was incompatible with a treaty’s objects and purpose. Interpretative declarations based on religious 342 formulations of rights raise similar concerns. States that have entered reserva- tions or declarations based on Islamic or religious rights formulations are: Algeria (CRC); 343 Afghanistan (CRC); 344 Saudi Arabia (CERD, 345 CEDAW, 346 CRC); 347 Egypt (ICESCR/ICCPR, 348 CEDAW); 349 Bahrain (ICCPR, 350 CEDAW); 351 ; Israel

bound by its provisions in the light of the requirements of domestic statues and laws and, in accord- ance with the recognition accorded them in the preamble to the Convention, such a manner that the country’s traditions and cultural values are not violated.’ ³⁴² Israel entered a reservation on personal status under the ICCPR. Th e reservation reads: ‘With

reference to Article 23 of the Covenant, and any other provision thereof to which the present reser- vation may be relevant, matters of personal status are governed in Israel by the religious law of the parties concerned.’ ³⁴³ See n 325. ³⁴⁴ See n 321. ³⁴⁵ Saudi Arabia’s reservation under CERD states: ‘[Th e Government of Saudi Arabia declares that

it will] implement the provisions [of the above Convention], providing these do not confl ict with the precepts of the Islamic Shar î’ ah .’ ³⁴⁶ Saudi Arabia has a general interpretative reservation, which reads: ‘In case of contradiction

between any term of the Convention and the norms of Islamic law, the Kingdom is not under obliga- tion to observe the contradictory terms of the Convention.’ It also has a specifi c reservation attached to Article 9(2) (which provides that States Parties shall grant women equal rights with men with respect to the nationality of their children) stating that the ‘Th e Kingdom does not consider itself bound by [this] paragraph.’ ³⁴⁷ Saudi Arabia’s general interpretative reservations reads: ‘[Th e Government of Saudi Arabia

enters] reservations with respect to all such articles as are in confl ict with the provisions of Islamic law.’ ³⁴⁸ Th e Egyptian declaration for both the ICCPR and the ICESCR states: ‘Taking into considera-

tion the provisions of the Islamic Shar î’ ah and the fact that they do not confl ict with the text annexed to the instrument, we accept, support and ratify it . . . ’ ³⁴⁹ Egypt entered specifi c reservations to Articles 9(2) and 16. It also entered in a general reserva-

tion to Article 2. In January 2008, it withdrew its reservation to Article 9(2). Its general reservation reads: ‘Th e Arab Republic of Egypt is willing to comply with the content of this article, provided that such compliance does not run counter to the Islamic Shar î’ ah .’ Th e specifi c interpretative reserva- tion to Article 16, which we address in section 3.1 is particularly interesting and highlights Martin’s argument that rights are indeed thought about in diff erent terms. It reads: ‘Reservation to the text of article 16 concerning the equality of men and women in all matters relating to marriage and family relations during the marriage and upon its dissolution, without prejudice to the Islamic Shar î’ ah’s provisions whereby women are accorded rights equivalent to those of their spouses so as to ensure a just balance between them. Th is is out of respect for the sacrosanct nature of the fi rm religious beliefs which govern marital relations in Egypt and which may not be called in question and in view of the fact that one of the most important bases of these relations is an equivalency of rights and duties so as to ensure complementary which guarantees true equality between the spouses. Th e provisions of the Shar î’ ah lay down that the husband shall pay bridal money to the wife and maintain her fully and shall also make a payment to her upon divorce, whereas the wife retains full rights over her property and is not obliged to spend anything on her keep. Th e Shar î’ ah therefore restricts the wife’s rights to divorce by making it contingent on a judge’s ruling, whereas no such restriction is laid down in the case of the husband.’ ³⁵⁰ Th e reservation states: ‘Th e Government of the Kingdom of Bahrain interprets the Provisions of

Article 3, (18) and (23) as not aff ecting in any way the prescriptions of the Islamic Shar î’ ah. ’ ³⁵¹ Reservations by Bahrain to CEDAW read as follows: ‘the Kingdom of Bahrain makes reserva-

tions with respect to the following provisions of the Convention: Article 2, in order to ensure its

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(ICCPR, 352 CEDAW); 353 Kuwait (ICCPR, 354 CERD, 355 CRC); 356 Mauritania (ICCPR, 357 CERD, 358 CRC); 359 Morocco (CEDAW, 360 CRC); 361 UAE (CEDAW, 362

implementation within the bounds of the provisions of the Islamic Shar î’ ah; Article 9, paragraph 2;- Article 15, paragraph 4;- Article 16, in so far as it is incompatible with the provisions of the Islamic Shar î’ ah ;- Article 29, paragraph 1’. ³⁵² See n 342. ³⁵³ See n 329. ³⁵⁴ Interpretative declaration under ICCPR regarding Article 23 reads: ‘Th e Government of Kuwait

declares that the matters addressed by article 23 are governed by personal-status law, which is based on Islamic law. Where the provisions of that article confl ict with Kuwaiti law, Kuwait will apply its national law.’ ³⁵⁵ Kuwait’s reservation to Article 16(f ) reads: ‘Th e Government of the State of Kuwait declares that

it does not consider itself bound by the provision contained in article 16 (f ) inasmuch as it confl icts with the provisions of the Islamic Shar î’ ah , Islam being the offi cial religion of the State.’ Note that Kuwait also had a reservation on Article 7(a), which restricted the eligibility to stand for election or vote to males. Several states indicated that this restriction interfered with the object and purpose of the treaty. Kuwait withdrew the reservation in December 2005, although a similar reservation remains under the ICCPR. ³⁵⁶ See n 324. ³⁵⁷ Reservations under ICCPR state: ‘Th e Mauritanian Government, while accepting the provi-

sions set out in article 18 concerning freedom of thought, conscience and religion, declares that their application shall be without prejudice to the Islamic Shar î’ ah .’ ³⁵⁸ Mauritania attached a general interpretative declaration to CEDAW, which reads: ‘Having seen

and examined the United Nations Convention on the Elimination of All Forms of Discrimination against Women, adopted by the United Nations General Assembly on 18 December 1979, have approved and do approve it in each and every one of its parts which are not contrary to Islamic Shar î’ ah and are in accordance with our Constitution.’ ³⁵⁹ Mauritania attached a general interpretative reservation to the CRC, which reads: ‘In signing

this important Convention, the Islamic Republic of Mauritania is making reservations to articles or provisions which may be contrary to the beliefs and values of Islam, the religion of the Mauritania People and State.’ ³⁶⁰ See n 331. ³⁶¹ See n 332. ³⁶² Th e UAE interpretative reservations are attached to Articles 2(f ), 15(2), 16, and 29(1) of the

Convention, as follows: Article 2(f ): ‘Th e United Arab Emirates, being of the opinion that this para- graph violates the rules of inheritance established in accordance with the precepts of the Shar î’ ah makes a reservation thereto and does not consider itself bound by the provisions thereof.’ Article 15(2): ‘Th e United Arab Emirates, considering this paragraph in confl ict with the precepts of the Shar î’ ah regarding legal capacity, testimony and the right to conclude contracts, makes a reservation to the said paragraph of the said article and does not consider itself bound by the provisions thereof.’ Article 16: ‘Th e United Arab Emirates will abide by the provisions of this article insofar as they are not in confl ict with the principles of the Shar î’ ah .’ Th e United Arab Emirates considers that the pay- ment of a dower and of support after divorce is an obligation of the husband, and the husband has the right to divorce, just as the wife has her independent fi nancial security and her full rights to her property and is not required to pay her husband’s or her own expenses out of her own property. Th e Shar î’ ah makes a woman’s right to divorce conditional on a judicial decision, in a case in which she has been harmed. Article 29(1): ‘Th e United Arab Emirates appreciates and respects the functions of this article, which provides: “Any dispute between two or more States Parties concerning the inter- pretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months . . . the parties are unable . . . ” [any one of those parties] “may refer the dispute to the International Court of Justice . . . ” Th is article, however, violates the general principle that matters are submitted to an arbitration panel by agree- ment between the parties. In addition, it might provide an opening for certain States to bring other States to trial in defence of their nationals; the case might then be referred to the committee charged with discussing the State reports required by the Convention and a decision might be handed down

5 Approach to Human Rights by Middle Eastern States 65

CRC); 363 Jordan (CEDAW, 364 CRC); 365 Qatar (CEDAW, 366 CAT, 367 CRC); 368 Iraq (CEDAW, 369 CRC); 370 Iran (CRC); 371 Libya (CERD); 372 Lebanon (CERD); 373 Oman (CEDAW, 374 CRC); 375 and Syria (CERD, 376

against the State in question for violating the provisions of the Convention. For these reasons the United Arab Emirates makes a reservation to this article and does not consider itself bound by the provisions thereof.’ ³⁶³ See n 362 in as much as the reservation refers to UAE’s respect for the CRC provided that its

provisions are in accordance with the State’s traditions and cultural values . See also UAE’s reservation to Article 14, CRC. ³⁶⁴ Although the Jordanian reservation does not make reference to Shar î’ ah law, the articles to

which reservations were attached suggest that the underpinning for the reservation does relate to per- sonal status restrictions under Shar î’ ah and therefore is included in our list. Jordan’s reservations are attached to Articles 9(2) and 16(1)(c), (d), (g) as follows: ‘Article 9, paragraph 2; 3. Article 16, para- graph (1) (c), relating to the rights arising upon the dissolution of marriage with regard to mainte- nance and compensation; 4. Article 16, paragraph (1) (d) and (g).’ Note that Jordan had also entered a declaration on Article 15(4), which read ‘a woman’s residence and domicile are with her husband’, the second reservation, but this reservation was withdrawn in May 2009. ³⁶⁵ Jordan’s reservation to the CRC reads: ‘Th e Hashemite Kingdom of Jordan expresses its reserva-

tion and does not consider itself bound by articles 14, 20 and 21 of the Convention, which grant the child the right to freedom of choice of religion and concern the question of adoption, since they are at variance with the precepts of the tolerant Islamic Shar î’ ah .’ ³⁶⁶ See n 335. ³⁶⁷ Qatar was the only Muslim State party to the Convention to attach an interpretative reservation.

Th e reservation is a general reservation to CAT and reads: ‘Any interpretation of the provisions of the Convention that is incompatible with the precepts of Islamic law and the Islamic religion.’ ³⁶⁸ Qatar had initially entered a general interpretative reservation to the CRC ‘concerning any of

its provisions that are inconsistent with the Islamic sharia’. It withdrew the general reservation in January 2009 and instituted a partial reservation which applied Articles 2 and 14 of the CRC. ³⁶⁹ Reservation reads: ‘Approval of and accession to this Convention shall not mean that the

Republic of Iraq is bound by the provisions of article 2, paragraphs (f ) and (g), of article 9, paragraphs 1 and 2, nor of article 16 of the Convention. Th e reservation to this last-mentioned article shall be without prejudice to the provisions of the Islamic Shar î’ ah according women rights equivalent to the rights of their spouses so as to ensure a just balance between them.’ ³⁷⁰ Iraq’s reservation to the CRC reads: ‘Th e Government of Iraq has seen fi t to accept [the

Convention] . . . subject to a reservation in respect to article 14, paragraph 1, concerning the child’s freedom of religion, as allowing a child to change his or her religion runs counter to the provisions of the Islamic Shar î’ ah .’ ³⁷¹ Iran entered a general interpretative declaration to the CRC, which states: ‘Th e Government of

the Islamic Republic of Iran reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in eff ect.’ ³⁷² Interpretative reservations are attached to Article 2 and Article 16(c) and (d) and reads: ‘Article

2 of the Convention shall be implemented with due regard for the peremptory norms of the Islamic Shar î’ ah relating to determination of the inheritance portions of the estate of a deceased person, whether female or male’; ‘Th e implementation of paragraph 16 (c) and (d) of the Convention shall be without prejudice to any of the rights guaranteed to women by the Islamic Shar î’ ah .’ ³⁷³ Although no explicit reference is made to Shar î’ ah in the reservation, Lebanon’s reservations

to Articles 9(2) and 16(1)(c), (d), (f ), and (g) (regarding the right to choose a family name) suggest that this was the underpinning to these particular reservations and therefore are included in the list of states. ³⁷⁴ See n 333. ³⁷⁵ See n 334. ³⁷⁶ Syria entered in interpretative reservations to a number of articles: ‘subject to reservations to

article 2; article 9, paragraph 2, concerning the grant of a woman’s nationality to her children; arti- cle 15, paragraph 4, concerning freedom of movement and of residence and domicile; article 16,

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CRC). 377 Th e theological and legal classifi cations derived from Islamic authorities that are related to human rights diff er from Western discourses, which ‘thinks and argues in quite diff erent terms’. 378 Yet, at international level, it is the international human rights narrative that serves as a point of departure as authors of ‘Islamic’ human rights formulations engage with the UN human rights machinery. Grafting ninth-century principles onto twentieth-century formulations entails a specifi c interpretation of rights, exploiting areas where limitations are provided for within the international texts or ‘borrowing substantive human rights from international human rights instruments whilst restricting the rights by providing that they can be enjoyed only within the limits of Shari’a . . . ’. 379

One example of such a formulation is the Egyptian declaration to the ICCPR, which prefaces adoption and ratifi cation of the text with a reading of its provi- sions as compatible or ‘not in confl ict with’ Islamic Shar î’ ah . 380 Similarly, under CEDAW, Bahrain, Egypt, Libya, Mauritania, Morocco, Oman, Saudi Arabia, and UAE have all entered general reservations limiting interpretation or imple- mentation of Article 2 subject to Islamic Shar î’ ah . 381 Compatibility, in this for- mulation, necessitates that international human rights norms are interpreted and applied through the lens of Islamic Shar î’ ah . Specifi c substantive provisions that intersect group rights on matters such as those related to discrimination or to per- sonal status have the most signifi cant number of reservations attached. Th ese pro- vide preference to Islamic law as lex specialis in matters of nationality, marriage, and family. 382 Th ey are particularly prevalent under CEDAW, where reservations have been attached to a number of articles to limit the interpretation of equality under Islamic law ‘whereby women are accorded rights equivalent to those of their spouses so as to ensure a just balance between them’. 383 As noted earlier, this ‘true equality’ can only be achieved when diff erences between men and women are acknowledged. Th ese diff erences, found in Islamic Shar î’ ah provisions, are incorporated into an understanding of equality that is purported to be distinct to those outlined in international treaties.

paragraph 1 (c), (d), (f ) and (g), concerning equal rights and responsibilities during marriage and at its dissolution with regard to guardianship, the right to choose a family name, maintenance and adoption; article 16, paragraph 2, concerning the legal eff ect of the betrothal and the marriage of a child, inasmuch as this provision is incompatible with the provisions of the Islamic Shar î’ ah ’. ³⁷⁷ See n 336. ³⁷⁸ Martin (n 223) 9. ³⁷⁹ Mayer (n 8) 80. ³⁸⁰ Egypt’s declaration to the ICCPR reads: ‘Taking into consideration the provisions of the Islamic

Shar î’ ah and the fact that they do not confl ict with the text annexed to the instrument, we accept, support and ratify [the ICCPR].’ ³⁸¹ See Article 2 CEDAW, which outlines the specifi c nature of a states’ obligations towards the

elimination of all forms of discrimination against women. ³⁸² Whilst the majority of reservations relate to personal or family status issues, Kuwait attached

an additional reservation to Article 25(b) of the ICCPR, which limits the right to stand and vote in election to males. ³⁸³ See nn 339 and 369.

5 Approach to Human Rights by Middle Eastern States 67

It is beyond debate that rules that restrict women or relate to apostasy are found in Islamic law. However, there are equally as many areas within Shar î’ ah which are underdeveloped or where rules remain unclear. In these areas, a wide margin is assumed within which certain rights have been limited, based on state- crafted ‘Islamic’ formulations. Th e result is often a ‘nullifi cation of rights in areas where the Shar î’ ah calls for restrictions on rights and freedoms’ or where there is little or no guidance on a particular issue, which allows ‘states [to] enjoy wide leeway in constructing Islamic rationales to curb rights’. 384 Such formulations lend some insight into why a specifi c understanding of human rights, as moder- ated by the international human rights machinery, has failed to gain traction in Muslim states.

5.3 Charter-based system and related procedures

Th e second of the twin-track approach to UN human rights monitoring comes from Charter-based organs. Under the Charter-based system, bodies are either directly mandated by the UN Charter, e.g. General Assembly or the Economic and Social Council (ECOSOC), or authorized by these bodies, such as the Human Rights Council. 385 Th ese bodies delegate responsibilities to other offi ces such as Special Rapporteurs, Independent Experts, or Working Groups. 386 As Charter-based bodies are political organs, they contrast with the treaty-based system. Whereas treaty-based systems are client-oriented and limited to the terms and application of a specifi c treaty obligation, Charter-based bodies have a wider remit: in theory, every state is an actual or possible client. Within the UN Charter system, it is the UN Human Rights Council (hereinafter ‘the Council’), the Offi ce of the High Commissioner for Human Rights, and the monitoring procedures therein that are the main players and our review will focus primarily on Middle East states’ participation in their work.

In 2006, when the Council replaced the Commission on Human Rights (hereinafter ‘the Commission’), it made redundant the intermediary role played by ECOSOC, which served as liaison between the then Commission and the General Assembly. Whereas the Commission was a functional body of ECOSOC, the Council now has an elevated status as a subsidiary organ of the General Assembly. Th e Council’s composition and functioning diff ers from the Commission. It has a smaller membership consisting of 47 states, and its

³⁸⁴ Mayer (n 8) 81. ³⁸⁵ Th e Human Rights Council succeeded the Commission on Human Rights in 2006. For more

see J Almqvist and F G ó mez Isa (eds), Th e Human Rights Council: Challenges and Opportunities (FRIDE 2006) and L Blanchfi eld, Th e United Nations Human Rights Council: Issues for Congress (Congressional Research Service 2009). ³⁸⁶ Th ese are collectively known as Special Procedures. For more on their evolution and legal com-

petence see E Dominguez Redondo, Los Procedimientos P ú blicos Especiales de la Comisi ó n de Derechos Humanos de Naciones Unidas (Tirant lo Blanch 2005).

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members are elected by an absolute majority of the General Assembly. Its mem- bers serve for only two consecutive three-year terms. Unlike the Commission, the Council serves as a standing body and meets regularly. Th e Assembly may, by a two-thirds majority vote, suspend a Council member that engages in gross and systematic human rights violations. Ostensibly, the creation of this new Council was intended to redress some of the defi ciencies and criticisms that plagued its predecessor. 387 Whatever the assessment of the workings of the Commission and now the Council, for a number of states within our territorial ambit, Charter-based organs, in particular the Commission/Council and the High Commissioner’s Offi ce, remain the only avenues for engagement on human rights issues at the international level.

Under the Commission, two mechanisms emerged; the 1235 (public) and 1503 (confi dential) 388 procedures were set up to address situations where there was ‘a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms within the terms of reference of the Sub-Commission’. 389 Th e 1235 procedure served as a basis for a number of special procedures, which include special rapporteurs, independent experts, or working groups looking at a particular country via ‘country-specifi c’ mandates or focusing on thematic issues. Th e Council retained most of the special procedures, including the confi dential 1503, now called the ‘complaint procedure’ and, in addition, introduced the Universal Periodic Review (UPR), whereby states are periodically scrutinized by their peers on the Council. 390

As noted earlier, the 1503 procedures are confi dential, but some infor- mation remains within the public domain including the number of states that have been subject to scrutiny. Of the 84 states examined under this procedure by the Commission up to 2005, 13 were from the Middle East:

³⁸⁷ Th is included questions related to the composition of the membership of the Commission, with a number of states with questionable human rights records seeking and securing membership, as well as criticisms that the Commission was used more as a political vehicle, rather than a constructive forum for addressing human rights concerns. For more see E Dominguez Redondo, ‘Th e Universal Periodic Review of the UN Human Rights Council: An Assessment of the First Session’ (2008) 7(3) Chinese Journal of International Law 721. ³⁸⁸ In 1971, the Sub-Commission under Res 1 (XXIV) adopted procedures on admissibility for the

1503 procedures that allowed any individual or group claiming to be the victim of such human rights violations to submit a complaint. Th e procedures also allowed NGOs to submit complaints as long as they had direct and reliable knowledge of such violations. ECOSOC streamlined the 1503 procedure in 2000 and, in doing so, bypassed the Sub-Commission as a whole and permitted consideration by the Commission of communications or situations referred to it by a fi ve-member Sub-Commission working group (one on Communications and the second on Situations). ³⁸⁹ Paragraph 1, ECOSOC Res 1503 (XLVIII) 27 May 1970. ³⁹⁰ To date, approximately one-third of UN member states has undergone this process.

5 Approach to Human Rights by Middle Eastern States 69

Afghanistan, 391 Bahrain, 392 Djibouti, 393 Iran, 394 Iraq, 395 Israel, 396 Kuwait, 397 Lebanon, 398 Saudi Arabia, 399 Syria, 400 Sudan, 401 UAE, 402 and Yemen. 403

Th e problems associated with the 1503 procedures 404 were highlighted by the ‘fl agrant abuse and manipulation of the procedure by the Argentinean Government at the time of the Dirty War’ in the 1970s, 405 which proved to be the catalyst for the public special 1235 procedures. 406 Th ere are a number of processes under the 1235 procedures, which signal varying degrees of engage- ment and compliance of a state with the UN human rights machinery. Under a country-specifi c mandate of the public special procedures, state compliance is not necessary and, therefore, this is not a particularly apt indicator of state engagement or compliance. In fact, the political nature of the Charter-based sys- tems, suggests that the decision to select a particular country, under the erstwhile Commission, 407 refl ected the composition and agenda of its members at the time. Currently, there are ten states 408 that are subject to country-specifi c mandates,

³⁹¹ From 1981–84; 37th–40th Session. ³⁹² From 1991–93; 47th–49th Session. ³⁹³ From 2003–04; 59th–60th Session. ³⁹⁴ From 1974–1975; 30th–31st Session. In 1983; 39th Session. ³⁹⁵ From 1988–89; 44th–45th Session. ³⁹⁶ From 1975–77; 31st–33rd Session. ³⁹⁷ In 1994; 50th Session. ³⁹⁸ In 1997; 53rd Session. ³⁹⁹ From 1995–98; 51st–54th Session. In 1999; 55th Session. ⁴⁰⁰ In 1989; 45th Session. In 1992; 48th Session. In 1997; 53rd Session. ⁴⁰¹ From 1991–93; 47th–49th Session. ⁴⁰² In 2000; 56th Session. ⁴⁰³ In 1998; 54th Session. In 1999; 55th Session. In 2000; 56th Session. ⁴⁰⁴ Th is particular case highlighted, as one commentator noted, that ‘this emphasis on confi den-

tiality during the entire process . . . made the procedure even more vulnerable to abuse and political manipulation’. See, J Gutter, ‘Special Procedures and the Human Rights Council: Achievements and Challenges Ahead’ (2007) 7(1) Human Rights Law Review 93, 98. ⁴⁰⁵ For detailed accounts and analysis of the case of Argentina in the United Nations, see I Guest,

Behind the Disappearances, Argentina’s Dirty War Against Human Rights and the United Nations (University of Philadelphia Press 1990); and D Kramer and D Weissbrodt, ‘Th e 1980 U.N. Commission on Human Rights and the Disappeared’ (1981) 3(1) Human Rights Quarterly 18. ⁴⁰⁶ Th e 1967 Resolution 1235 is generally regarded as the basis for the establishment of country

or thematic procedures; however, the Commission rarely used these functions, save for cases it con- sidered sui generis (e.g. Israel and South Africa). It appears that this trend was broken in the 1975 Chilean case. ⁴⁰⁷ Although the reform of the Commission to the Human Rights Council was meant to have

addressed some of the criticisms that plagued the Commission, including the proff ering of political agendas, it is yet unclear whether the newly confi gured Council will be successful. ⁴⁰⁸ Since 1998, there have been 24 countries that have had specifi c country mandates, six of which

were from within our territorial ambit—Sudan, Occupied Palestinian Territories, Iran, Syria, Iraq, and Afghanistan.

Th e Contemporary Middle East70

four of which—the Occupied Palestinian Territories, 409 Islamic Republic of Iran, 410 Syria, 411 and Sudan 412 —fall within our study area.

By contrast, a ‘standing invitation’ under the thematic procedures is refl ective of a state’s cooperation, as it entails an open invitation extended by a govern- ment to all thematic special procedures. By extending a standing invitation, states signal willingness to accept requests to visit from all special procedures without requiring express permission on each occasion. As of February 2010, 67 states 413 have extended standing invitations to the special procedures, including two from the Middle East—Iran and Jordan. Similarly, establishment of a fi eld Offi ce of the High Commissioner for Human Rights (OHCHR) or the issuance of Memorandums of Understanding (MOUs), which invite ‘technical’ cooperation, also refl ect degrees of cooperation with the UN special procedures mechanisms. Currently, the OHCHR have fi eld offi ces in 11 countries, 414 which includes the Occupied Palestinian Territories, and eight regional offi ces, including one in the Middle East in Beirut. 415

Auditing the relationship between states in the Middle East through the spe- cial public procedures reveals a mixed level of cooperation and engagement. 416 On the one hand, Middle Eastern states have been openly critical of the interna- tional human rights regime, rejecting the hegemonic language of international human rights. Situated within the larger Asian/Islamic values debate, these criticisms have highlighted the politicization of the former Commission, 417 and

⁴⁰⁹ A Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 was established by the Commission on Human Rights resolution 1993/2 A (‘until the end of the Israeli occupation’). ⁴¹⁰ A Special Rapporteur on the situation of human rights in the Islamic Republic of Iran was set up

in 2011 under Human Rights Council Resolution 16/9. ⁴¹¹ In 2011, under Resolution S-18/1, the 18th Special Session of the Human Rights Council

decided to ‘establish the mandate of the Special Rapporteur on the situation of human rights in the Syrian Arab Republic once the mandate of the commission of inquiry ends’. ⁴¹² A Special Rapporteur has been in place for Sudan since 1993. Since establishing this country-

specifi c mandate, Sudan has had 12 visits by the mandate holder. An Independent Expert on the situation of human rights in Sudan was established in 2009 for a period of one year by Human Rights Council Resolution 11/10. ⁴¹³ For a complete list see: <http://www2.ohchr.org/english/bodies/chr/special/invitations.htm>

accessed 4 August 2011. ⁴¹⁴ Offi ces have been established in Angola, Bolivia, Cambodia, Colombia, Guatemala, Mexico,

Nepal, the Occupied Palestinian Territories, Kosovo (Serbia), Togo, and Uganda. ⁴¹⁵ As of 2007, the OHCHR had eight regional offi ces covering East Africa (Addis Ababa), Southern

Africa (Pretoria), Central America (Panama City), Latin America (Santiago de Chile), South East Asia (Bangkok), the Middle East (Beirut), and the Pacifi c (Suva) and a Regional Centre for Human Rights and Democracy for Central Africa in Yaound é , Cameroon. ⁴¹⁶ Data obtained through the OHCHR for the period 1998 to date. ⁴¹⁷ Ironically, the current Council, which includes fi ve Middle Eastern states—Bahrain (term

expires 2011), Egypt (term expires 2010), Jordan (term expires 2012), Qatar (term expires 2010), Saudi Arabia (term expires 2012)—and a signifi cant representation by Muslim and African states has been similarly accused of furthering a political, rather than a human rights agenda. Th ese criticisms tend to focus on what is alleged to be a disproportionate focus on Israel during Council sessions.

http://www2.ohchr.org/english/bodies/chr/special/invitations.htm

5 Approach to Human Rights by Middle Eastern States 71

the complaint of ‘double standards’ employed by the human rights regime. 418 On the other hand, states from the region have accepted even the most intrusive of the UN’s monitoring mechanisms often with surprising levels of engage- ment. 419 In fact, the OHCHR has reported that, since 1998, the vast major- ity (20) of Middle Eastern states 420 have accepted requests for visits from thematic rapporteurs. Th ese include Afghanistan, 421 Algeria, 422 Mauritania, 423 Kuwait, 424 Jordan, 425 Israel 426 and the Occupied Palestinian Territories, 427

⁴¹⁸ On this debate, see Gutter (n 404), but see also R Falk, ‘Human Rights’ (2004) 141 Foreign Policy 18. ⁴¹⁹ As noted, Iran and Jordan have issued standing invites under thematic procedures. Other

states have extended individual invitations to, or cooperated with the visitation requests of Special Rapporteurs or Independent Experts. ⁴²⁰ Here, as elsewhere in this book, our study area consists of 24 states. ⁴²¹ Afghanistan Independent Expert on the human rights situation in Afghanistan has visited the

country seven times. Additionally, a number of visits have been made by special rapporteurs includ- ing: SR on Violence against Women, its Causes and Consequences, 1–13 September 1999, Report E/CN.4/2000/68/Add.4; SR on Extrajudicial, Summary or Arbitrary Executions, 13–23 October, 2002, Report E/CN.4/2003/3/Add.4; SR on Adequate Housing as a Component to an Adequate Standard of Living, 1–12 September 2003, Report E/CN.4/2004/48/Add.2; SR on Violence against Women, 9–16 July 2005, Report E/CN.4/2006/61/Add.5; SR on Extrajudicial, Summary or Arbitrary Executions, 5–15 May 2008, Report A/HRC/8/3/Add.6; WG on the Use of Mercenaries, 4–11 April 2009. ⁴²² See SR on Freedom of Religion or Belief, 16–26 September 2002, Report E/CN.4/2003/66/

Add.1; SR on Violence against Women, 21 January to 1 February 2007, Report A/HRC/7/6/Add.2. ⁴²³ See SR on Racism, 20–24 January 2008, Report A/HRC/7/19/Add.6; WG on Arbitrary

Detention, 19 February to 3 March 2008; SR on Slavery, 24 October to 4 November 2009. ⁴²⁴ See SR on Racism, 17–27 November 1996, Report E/CN.4/1997/71/Add.2. ⁴²⁵ See SR on Torture, 25–29 June 2006, Report A/HRC/4/33/Add.3. As of April 2006, Jordan has

issued a Standing Invitation under Special Procedures. ⁴²⁶ Whilst we consider Israel and the Occupied Palestinian Territories as one case, for the purposes

of the UN Special Procedures, visits to Israel (within the 1967 borders) and the Occupied Palestinian Territories are considered separately. For country visits by special procedure mandate holders to Israel, see SRSG on Human Rights Defenders, 4–11 October 2005. Check cites on these reports E/CN.4/2006/95/Add.3; Joint visit to Lebanon and Israel by SR on Extrajudicial, Arbitrary or Summary executions, Representative on Internally Displaced Persons, SR on Adequate Housing as a Component to an Adequate Standard of Living and SR on Health, 10–13 September 2006, Report A/HRC/2/7; SR on Human Rights and Counter Terrorism, 3–10 July 2007, Report A/HRC/6/17/ Add.4 (and A/HRC/6/17/Add.4/Corr.1); SR on Freedom of Religion or Belief, 20–27 January 2008. ⁴²⁷ Th e SR on the Situation of Human Rights in the Palestinian Territories Occupied since 1967

has visited the OPTs 14 times since 1998. However, since the appointment of Richard Falk as SR in May 2008, attempts by Falk to enter into Israel/OPTs have been denied. In a report issued by Falk in February 2009, he notes that a planned mission to the West Bank and Gaza was aborted as he was detained at Ben Gurion Airport in Tel Aviv upon entry. His report states: ‘Entry was denied on 14 December 2008; the Special Rapporteur was detained in a facility close to Ben Gurion Airport, then expelled from Israel the day after. Such a refusal to cooperate with a United Nations repre- sentative, not to mention the somewhat humiliating treatment accorded (detention in a locked and dirty cell with fi ve other detainees, and excessive body search), has set an unfortunate precedent with respect to the treatment of a representative of the Human Rights Council, and more generally of the United Nations itself. Th is precedent should be seriously challenged for the sake of both the mandate and, more broadly, to ensure that in future Member States accord appropriate respect and cooperation with offi cial United Nations missions and activities. One possible form of challenge would be to seek an advisory opinion from the International Court of Justice as to the applicability of the Convention on the Privileges and Immunities of the United Nations. Since such an approach,

Th e Contemporary Middle East72

Iran, 428 Iraq, 429 Egypt, 430 Oman, 431 Qatar, 432 Somalia, 433 Sudan, 434 UAE, 435

even if undertaken, would not produce a result in the near future, it would also be important to seek a modifi cation as soon as possible to the position of Israel via diplomatic channels’ (Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (A/HRC/10/20)). Additionally, a number of thematic mandate holders have undertaken vis- its including: SR on Adequate Housing as a Component to an Adequate Standard of Living, 5–10 January 2002, Report E/CN.4/2003/5/Add.1; SR on the Right to Food, 3–12 July 2003, Report E/CN.4/2004/10/Add.2; SR on Violence against Women, 13–18 June 2004, E/CN.4/2005/72/ Add.4; SRSG on Human Rights Defenders, 4–11 October 2005, Report E/CN.4/2006/95/Add.3; SR on Human Rights and Counter Terrorism, 3–10 July 2007, Reports A/HRC/6/17/Add.4 (and A/HRC/6/17/Add.4/Corr.1); SR on Freedom of Religion or Belief, 20–27 January 2008, Report A/ HRC/10/8/Add.2. ⁴²⁸ Like Jordan, Iran has issued a Standing Invitation under the Special Procedures. Additionally, a

number of visits by thematic mandate holders have taken place since 1998 including: SR on the Right to Freedom of Opinion and Expression, 3–11 November 2003, Report E/CN.4/2004/62/Add.2; WG on Arbitrary Detention, 15–27 February 2003, Report E/CN.4/2004/3/Add.2 and Corr.1; SR on the Human Rights of Migrants, 22–29 February 2004, Report E/CN.4/2005/85/Add.2; SR on Violence against Women, 29 January to 6 February 2005, Report E/CN.4/2006/61/Add.3; SR on Adequate Housing, 19–30 July 2005, Report E/CN.4/2006/41/Add.2. ⁴²⁹ Since 1998, two visits have been made by the SR on the Situation of Human Rights in Iraq. See

Report E/CN.4/2001/42 of 5–9 November 2000 and Report E/CN.4/2002/44 of 11–15 February 2002. As well, requests for visitations by the SRSG on Human Rights Defenders and the SR on Torture have been accepted. ⁴³⁰ See Independent Expert on the Right to Development, 18–20 January 2003 (no offi cial report

available); SR on Human Rights and Counter-Terrorism, 17–21 April 2009; IE on Water and Sanitation, 21–28 June 2009. A visit by the SR on Traffi cking in Persons, especially Women and Children was scheduled for 12–21 April 2010 and a request by the SR on Sale of Children, Child Prostitution and Child Pornography was accepted in 2010. ⁴³¹ See SR on Traffi cking in Persons, especially Women and Children, 17 November 2006, Report

A/HRC/4/23/Add.2. ⁴³² Ibid. ⁴³³ Since 1998, the Independent Expert on the Situation of Human Rights in Somalia has visited

Somalia eight times: in November 1998, Report E/CN.4/1999/103; in November 1999, Report E/CN.4/2000/110; in September 2001, Report E/CN.4/2002/119; in September 2002, Report E/CN.4/2002/119; in September 2003, Report E/CN.4/2004/103; in February 2005, Report E/ CN.4/2005/117; in September 2005, Report A/HRC/2/CRP.2, and in September 2007, Report A/ HRC/7/26. As well, the Representative of the Secretary General on Internally Displaced Persons visited in October 2009. ⁴³⁴ Th irteen visits were undertaken by the Special Rapporteur on the Situation of Human Rights in

the Sudan: in August 1997, Report E/CN.4/1998/66; in February 1999, Report E/CN.4/1999/38/ Add.1; in March 2000, Report E/CN.4/2000/36; in October 2001, Report E/CN.4/2002/46; in October 2002, Report E/CN.4/2003/42; in August 2004, Report E/CN.4/2003/42; in October 2005, Report E/CN.4/2006/111; in March and August 2006, Report A/61/469; in August 2006, no report; in July and August 2007, Report A/HRC/7/22; in February–March 2008, no report; in June–July 2008, no report and in May–June 2009, no report. Additionally, a number of visits were made by thematic rapporteurs since 1998. See SR on the Right to Freedom of Opinion and Expression, 20–26 September 1999, Report E/CN.4/2000/63/Add.1; the Representative of the Secretary General on Internally Displaced Persons in 2001 (Report E/CN.4/2002/95/Add.1), 2002 (Report E/CN.4/2003/86/Add.1), and 2005 (Report E/CN.4/2006/71/Add.6); the Independent Expert on Human Rights and Extreme Poverty, 18–20 November 2003, Report E/CN.4/2004/43/; SR on Summary and Arbitrary Executions, 2–12 June 2004, Report E/CN.4/2005/7/Add.2; the Special Representative of the Secretary General on Internally Displaced Persons, 24–31 July 2004, Report E/CN.4/2005/8; and SR on Violence against Women, 28 September to 2 October 2004, Report E/CN.4/2005/72/Add.5. ⁴³⁵ Visits were undertaken by Special Rapporteur on Racism (4–8 October 2009) and Special

Rapporteur on Sale of Children (12–28 October 2009).

5 Approach to Human Rights by Middle Eastern States 73

Yemen, 436 Saudi Arabia, 437 Lebanon, 438 Bahrain 439 and Morocco. 440 Libya, Comoros, Djibouti, and Syria have not, to date, allowed country visits by spe- cial procedure mandate holders.

Th e establishment of the UPR was the most substantial departure of the Council from its predecessor. 441 Created by General Assembly Resolution 60/251, the Council was mandated to:

. . . undertake a universal periodic review, based on objective and reliable information, of the fulfi lment by each State of its human rights obligations and commitments in a man- ner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity- building needs; such a mechanism shall complement and not duplicate the work of treaty bodies. 442

Under Resolution 5/1 of 18 June 2007, endorsed by the General Assembly Resolution 62/434 of 3 December 2007, the Council laid out the details of the mechanism. 443 Th e system reviews all 192 UN member states, in cycles of 48 states per year, through three annual Working Group sessions. All member states of the Council are reviewed during their membership tenure. To date, all 192 member states 444 have undergone the UPR. What is perhaps notable about the UPR system is the ‘prevailing gentility’ in the process itself. Th e restraint in the discourse may well, as Carey has argued, ‘result from the fact that each country is itself scrutinized every four years. Some countries that have probed a bit sharply may regret it when their turn comes. Others will go easy in a spirit of mutual back-scratching.’ 445 Early reviews of the system indicated that the gentility of the approach was palpable during the fi rst Working Group session of the UPR, though what was notable was the degree of participation including from Middle Eastern members and non-HRC member states, with over half the states of the UN participating verbally in proceedings. 446

⁴³⁶ See Working Group on Enforced or Involuntary Disappearances, 17–21 August 1998, Report E/CN.4/1999/62/Add.1 and Corr.1; Independent Expert on Human Rights and Extreme Poverty, 11–14 November 1998, Report E/CN.4/1999/48 and Independent Expert on Human Rights and Extreme Poverty, 2–5 October 2003, Report E/CN.4/2004/43/Add.1. ⁴³⁷ See paragraph(s) 3, CAT/C/CR/28/5 (CAT, 2002); paragraph(s) 5, CERD/C/62/CO/8

(CERD, 2003). ⁴³⁸ See SR on Traffi cking, 20 February 2006, Report E/CN.4/2006/62/Add.3. ⁴³⁹ See paragraph(s) 5 CAT/C/CR/34/BHR (CAT, 2005). ⁴⁴⁰ See SR on Education, 7 February 2007, Report A/HRC/4/29/Add.2. ⁴⁴¹ For an excellent assessment on the formation and workings of the UPC, see Redondo (n 387)

721. ⁴⁴² UN GA Res 60/251, para 5(e). ⁴⁴³ UN GA Res 62/434. ⁴⁴⁴ Th is number includes all those reviewed up to and including the twelfth session of the Human

Rights Council Universal Periodic Review, which completed the fi rst cycle of review. ⁴⁴⁵ J Carey, ‘Th e UN Human Rights Council: What would Eleanor Roosevelt Say?’ (2009) 15

Journal of International & Comparative Law 459, 460. ⁴⁴⁶ Dominguez Redondo (n 387).

Th e Contemporary Middle East74

5.4 Regional systems

In terms of assessing the effi cacy of regional mechanisms, the diff erences Martin notes in minority identities in Islamic societies emerge clearly. 447 Th e scope for the regional context lies in key documents such as the Arab Charter 448 and Islamic human rights schemes such as the Beirut and Cairo Declarations and the Universal Islamic Declaration of Human Rights. Th ese have emerged under the League of Arab States and the Organization of the Islamic Conference (OIC). 449 Th e League of Arab States was founded under the Pact of the League of Arab States of 1945 450 ‘[w]ith a view to strengthen[ing] the close relations and numer- ous ties which bind the Arab States’. 451 Th e independence and sovereignty of member states is emphasized in the Pact and there is no reference in its founding document to either the contents or principles of human rights. Th e OIC was established in 1969 to promote Islamic ‘unity and solidarity among the [56] Member States in securing their common interests at the international arena’ and to work towards socio-economic, political, and environmental cooperation. 452 Unlike the Pact, the Charter references member states’ international law and human rights commitments. 453

At the 1968 Tehran World Conference, the situation of Arabs in territories occupied by Israel was placed on the agenda of Arab states and led to one of the fi rst ‘human rights’-related issues to be raised among Arab states. Th is intervention shaped awareness amongst Arab states of the human rights discourse. However, both during and after the Tehran conference, when human rights concerns were raised by Arab states, they were confi ned to criticism of Israel over its treatment of Palestinians. Also in 1968, the Permanent Arab Commission on Human Rights (ACHR) was established during a regional conference on human rights. 454

⁴⁴⁷ Martin (n 223) 3. ⁴⁴⁸ Adopted 15 September 1994, reprinted in (1997) 18 Human Rights Law Journal 151. ⁴⁴⁹ Th e Cairo Declaration was submitted to the UN by the Organisation of the Islamic Conference

(OIC) prior to the World Conference on Human Rights in Vienna. See UN GAOR, World Conference on Human Rights, 4th session, Agenda Item 5, UN Doc A/CONF.157/PC/62/ADD.18 (1993). ⁴⁵⁰ UN Doc A/C. 6/L.111, UNTS, vol LXX, 237–63. ⁴⁵¹ Preamble, Pact of the League of Arab States, 1945. ⁴⁵² Preamble, Charter of the Organisation of the Islamic Conference, 1969. ⁴⁵³ Th e Preamble to the Charter references ‘a commitment to the principles of the United Nations

Charter, the present Charter and International Law’; ‘to promote the lofty Islamic values of peace, compassion, tolerance, equality, justice and human dignity’; ‘to contribute to international peace and security, understanding and dialogue among civilizations, cultures and religions and promote and encourage friendly relations and good neighbourliness, mutual respect and cooperation’; and ‘to promote human rights and fundamental freedoms, good governance, rule of law, democracy and accountability in Member States in accordance with their constitutional and legal systems’. Th e Charter also references protection for women, religious minorities, respect for self-determination rights, and support for the ‘struggle’ of Palestinians. ⁴⁵⁴ See M Rishwami, ‘Th e Arab Charter on Human Rights and the League of Arab States’ (2010)

10(1) H uman Rights Law Review 169.

5 Approach to Human Rights by Middle Eastern States 75

Unlike many human rights bodies, this Commission is not comprised of inde- pendent experts but of political appointees.

Th e fi rst Arab Charter on Human Rights was adopted by the Council of the League of Arab States in 1994, but failed to attract state ratifi cations. 455 Th e Council of the League then adopted resolutions in 2002 and 2003 to ‘mod- ernize’ the 1994 Charter through the Arab Standing Committee on Human Rights. 456 After consultations with member states, independent experts and non-governmental organizations (NGOs) in 2004, a revised Arab Charter on Human Rights 457 was adopted during the sixteenth Ordinary Session of the Arab Summit. 458 In 2008, it reached a suffi cient number of ratifi cations and entered into force. 459

Other Islamic human rights schemes include the Cairo Declaration on Human Rights in Islam, adopted in 1990 by the OIC, 460 the Universal Islamic Declaration of Human Rights, adopted by the Islamic Council of Europe in 1981, 461 and the 2003 Beirut Declaration on the Regional Protection of Human Rights. 462 Th e Cairo Declaration is non-binding, as its title suggests, and is closely based on Islamic principles. In 2004, the OIC adopted a binding instrument with a spe- cifi c focus: the Covenant on the Rights of the Child in Islam. 463 Th is Convention is open for ratifi cation and will enter into force after 20 OIC member states have ratifi ed it. Although the Convention provides for a monitoring mechanism— the Islamic Committee on the Rights of the Child—its mandate is only vaguely drafted.

Th e engagement by Middle Eastern states in the international human rights regime as state parties to international human rights treaties and, in some cases, related monitoring mechanisms suggests that there is a willingness by states to participate in ‘the human rights objective of the UN’. 464 At the same time, reser- vations and derogations take exception to their expression. Mayer has argued that

⁴⁵⁵ For a perspective on the early discussions concerning the development of a regime see AA An-Na’im, ‘Human Rights in the Arab World: A Regional Perspective’ (2001) 23(3) Human Rights Quarterly 701. ⁴⁵⁶ Resolutions of the Council of Ministers of the League of Arab States: n 6184 of March 2002,

n 6243 of September 2002, and n 6302/119 (Part II) of March 2003. Noted in M Rishmawi, ‘Th e Revised Arab Charter on Human Rights: A Step Forward?’ (2005) 5(3) Human Rights Law Review 362–3. ⁴⁵⁷ League of Arab States, Revised Arab Charter on Human Rights, 22 May 2004, reprinted in

(2005) 12 International Human Rights Reports 893, entered into force 15 March 2008. ⁴⁵⁸ Summit was held on 23 May 2004 in Tunis. ⁴⁵⁹ Seven states were required for ratifi cation. Th e UAE, Jordan, Bahrain, Algeria, Syria, Palestine,

and Libya were amongst the fi rst seven to ratify and, to date, have been joined by Qatar, Saudi Arabia, and Yemen. ⁴⁶⁰ An-Na’im (n 455) 713. ⁴⁶¹ 21 Dhul Qaidah 1401 , 19 September 1981. ⁴⁶² As reprinted in AO Sherif and NJ Brown, ‘Judicial Independence in the Arab World’ (2002)

Study prepared for the UNDP Program on Governance in the Arab Region, Appendix B. ⁴⁶³ OIC Document No OIC/9-IGGE/HRI/2004/Rap.Final. ⁴⁶⁴ Baderin (n 133) 2.

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these tensions are mirrored in engagement between Western scholars and those who ‘put forward distinctive Islamic schemes of human rights’. 465 In some cases, these scholars ‘seek to accentuate the formal resemblance between their schemes and the international ones even where that resemblance is misleading in terms of the actual level of rights protections they intend to provide’. 466

Th e result is that diff erences are concealed in order to ‘minimize their importance’. 467 Whereas international human rights law provides for individual rights protection, the narrative that accompanies Islamic human rights schemes remains a purposeful ‘idealistic abstraction’. 468 It is in two sites of confl ict—on questions related to equality and minority communities—that this engagement will be briefl y reviewed.

Th e question of what comprises ‘true’ equality, which has engaged debate by some Muslim scholars, is an interesting one. 469 Th is approach suggests that the equality espoused and protected within Islam is a genuine form of equality as it recognizes the diff erent roles of men and women and endeavours to bring a ‘just balance’ between both. 470 Th is view is refl ected in a reservation by Egypt to Article 16 of the CEDAW 471 as well as several reservations to Article 23 of the ICCPR. 472 Th is distinction between what the law requires and how it is enforced in relation to gender equality is also refl ected in some of the discourse by Muslim schol- ars critical of the international human rights regime. 473 Within Islamic human rights schemes, questions of equality are addressed in distinct ways. Under the UIDHR, the equality provision states that, ‘all persons are equal before the Law and are entitled to equal opportunities and protection of the Law’. 474 However, in Arabic, this has been translated to ‘equality under Shar î’ ah’, without any dis- crimination in application or practice. Mayer has argued that this provision, in eff ect, recognizes that equality before a law ‘in its premodern formulations is inherently discriminatory and thereby in violation of international standards’. 475 Mayer’s argument on this provision mirrors her reservations with regard to this

⁴⁶⁵ Mayer (n 8) 57. ⁴⁶⁶ Ibid. ⁴⁶⁷ Ibid. ⁴⁶⁸ Ibid. ⁴⁶⁹ See Baderin (n 133) 60–1; Mayer (n 8) 100–4. Also see A Mayer, ‘Internationalization of the

Conversation on Women’s Rights: Arab Governments Face the CEDAW Committee’ in Y Haddad and B Freyer Stowasser (eds), Islamic Law and the Challenge of Modernity (Altamira Press 2004) 133–60. ⁴⁷⁰ Th is is contained in the Egyptian reservation to the CEDAW. See full text at n 349. ⁴⁷¹ See n 349. ⁴⁷² Th e Mauritanian reservation to Article 23 which states, ‘[t]he Mauritanian Government inter-

prets the provisions of article 23, paragraph 4, on the rights and responsibilities of spouses as to marriage as not aff ecting in any way the prescriptions of the Islamic Shar î’ ah ’ is refl ective of the view of a number of other states, including Algeria and Kuwait and, separately, Israel who also invoked a reservation to signal the precedence for ‘religious law’. ⁴⁷³ See Ali (n 209). ⁴⁷⁴ Article 3(a) Universal Declaration of Human Rights, 1948. ⁴⁷⁵ Mayer (n 8) 105–6.

5 Approach to Human Rights by Middle Eastern States 77

regional project as a whole, as she notes that the drafters fail to adequately address the tensions that exist at the interface of Shar î’ ah as codifi ed by states and human rights law. 476

Th e Beirut Declaration on the Regional Protection of Human Rights of 2003, by contrast, suggests a diff erent engagement with the question of equality. Th e Declaration was the result of a conference that engaged a range of non-state actors, drawn from the NGO community, academics, the media, and the legal profession. 477 Mayer argues that, given the participation of civil society in the drafting, the Declaration better refl ects norms and values of the Muslim world. Th is stands in contrast to the UIDHR, where the expressions were ‘principles imposed by Iran’s theocrats or the Saudi royal family’. 478 In this text, equality is framed as ‘absolute equality in dignity and citizenship’ 479 and, when specifi - cally addressing gender equality, the Declaration states: ‘Women have the right to dignity and legal status, which makes them able to control their own destiny and to practice their equal duties and rights as men within the private and public spheres.’ 480

Principle 3 of the Declaration departs from the cultural relativity that litters other Islamic alternatives to the human rights regime, stating:

Civilization or religious particularities should not be used as a pretext to cast doubt and to question the universality of human rights. Th e ‘particularities’ that deserve celebration are those which make a citizen have a sense of dignity, equality and enriches his/her culture and life, and promote his/her participation in their own country’s public aff airs. Assuring the tolerant principles of Islam and religions in general should not be put in a false con- tradiction to human rights principles. Th e conference [rejects the authority] of aged inter- pretations of Islam that distort Islam and insult Muslims and leads to violations of human rights, particularly when excluding women and not allowing freedom of thought, belief, creative art, literature and scientifi c research. 481

Although not unique to the Middle East, 482 the language of rights rests on uncom- mon ground: it is received and, in turn, engaged quite diff erently and remains, in the region, a hotly contested discourse. Much like the rather diverse grouping of states in Asia and the Pacifi c, which to some extent intersect and overlap with the

⁴⁷⁶ Mayer (n 8) 51. ⁴⁷⁷ Th e Beirut Declaration on the Regional Protection of Human Rights, 2003. Published by the

Cairo Institute for Human Rights Studies and the Association for the Defence of Human Rights and Liberty, Beirut, Lebanon. For a summary of proceedings and the text of the Declaration see, A Chase and A Hamzawy (eds), Human Rights in the Arab World: Independent Voices (Pennsylvania Studies in Human Rights 2008) 226–31. ⁴⁷⁸ AE Mayer, ‘Th e Islam and Human Rights Nexus: Shifting Dimensions’ (2007) 4(1) Muslim

World Journal of Human Rights 7. ⁴⁷⁹ See n 477. ⁴⁸⁰ Ibid Article 15. ⁴⁸¹ Ibid Article 3. ⁴⁸² As Castellino and Dominguez Redondo note in their review of Asian participation in Treaty and

Charter based systems, this criticism is shared. See Castellino and Dominguez (n 10) 26–42.

Th e Contemporary Middle East78

Muslim world, states have been unable or unwilling to establish a supranational human rights convention or body. Without an intergovernmental organization to serve as a regional umbrella for such a diverse group of states in this region, a regional human rights system remains unlikely.

Conclusion

To de-exceptionalize the exceptionalist arguments that often accompany secondary literature pertaining to the Middle East, we began by examining the territorial ambit of the ‘Middle East’. Th e birthing states in this region and the accompanying problems in grafting artifi cially divided territory, that both included and excluded kinship groups and systems, on to ancient civilizations, collectives and pre-existing structures is not unique to what we refer to, contem- poraneously, as the Middle East. Th e confl icts that have ensued, often a result of this process, are not exceptional and can be found in other territories shaped by colonization. In some of the areas where it has been argued that the spheres of authority (church and state) have collapsed and prevented an evolutive reading of the social message of Islam within Muslim states, we have endeavoured to refl ect on how state practices with regard to minorities, ostensibly based on Islamic authority, intersect and inform modern constitutionalism and international law. Th e notion of an actor that shapes or formulates state policies is rejected, and the analytical framework off ered has sought to challenge the construction of Islam as the sole or indeed most important variable in examining the relationship between minorities and sites of power.

Against this backdrop, the review of minority rights in the region will focus on the question of state practice —both externally, as states engage with the inter- national community and related human rights discourse, and, internally, where practices cause a diff erentiation or social fact of minority status. Within the social sciences, history and law, questions related to minorities and minority identities ignite diff erent methodologies and theoretical frameworks. Our understanding, relative to the debates and problems associated with minority identity construc- tion, is informed by some of these comparative methods. We are acutely aware that modern Western scholarship tackles some of the questions we engage, in rela- tion to the Muslim majority/non-Muslim minority, in diff erent terms compared to that of the Muslim world. Although our examination of the status of religious and ethnic minorities is not exhaustive, and will be grounded in law, with all the caveats and limitations therein, we hope it will ignite further examination and debate across disciplines.

Minority Identities in the Middle East Religious Minorities

Introduction

Th ere are two primary categories to emerge with regard to the classifi cation of minorities in the Middle East. Th e fi rst comprises religious minorities, both early religious groups 1 and more contemporary groups established during or after the nineteenth century. 2 Th e second category comprises Muslim ethnic groups spread over two or more territories with a distinct cultural identity and language. Th ere are, as we have outlined in our taxonomy, many more divisions within these divisions but, across these, there are two essential points to emerge as we develop our framework.

Th e fi rst relates to the construction of a minority identity. Th e West’s import of the nation-state and varieties of nationalisms replaced both Pan-Arabism and largely secular models of Islamic societies that existed in the early twentieth cen- tury and shaped minority identity construction within these societies. Th e advent of the state in the Middle East gave rise to an increasingly politicized and often radically expressed version of minority identities. Whereas such identities were historically distinguishable from the Muslim majority by socio-cultural factors, that distinction became politically framed and informed by that minority’s rela- tionship with the state. Our categorization emphasizes the need to delink minor- ity identity from the notion of size; i.e. being a minority does not mean being part of a group that is smaller relative to the size of a dominant group. 3 Similarly, religious minorities comprise not just non-Muslims living in predominately Muslim states but Muslim communities as well as political minorities, such as Shi ‛ a in Saudi Arabia or Sunnis in Iran.

Secondly, a dichotomy emerges between the theoretical or empirical studies of Western scholarship and ‘the social realities of religious, ethnic, and national

¹ Th is would include the Copts in Egypt or Christians in Lebanon. ² Examples include Baha’is in Iran and, whilst outside of the scope of this book, Christians in

Pakistan. ³ As we detail in Chapter 3, ‘majoritarian’ minorities have existed historically and continue to exist

in the Middle East.

Minority Identities in the Middle East: Religious Minorities80

minorities’. 4 Contemporary theories on minorities recognize the ‘tension and sometimes confl ict between normative and actual behaviour’. 5 Martin highlights the distinction between Muslim intellectuals living (mainly) in the West who engage in an ‘optimistic’ discourse on minorities against the ‘rigid framework of shari’ah-minded discourse’ 6 located elsewhere. Th is explains, in part, why ‘it is impossible for Islamic societies, even using the traditional Islamic laws, to develop a unifi ed approach’. 7

Th ere remain multiple paradigms emerging from scholarship on minority communities in the Middle East. Although, within this contested terrain, it is possible to fi nd literatures that neither attempt to idealize the past nor to dis- count it altogether, we are equally aware that existing material which endeavours to look at the roots of sectarianism in the Middle East may be grafted on to particular perspectives—the optimistic discourse of Martin, which contrasts with the ‘Orientalist’ approach of Said. Th at ‘history’ may now be inextricably linked to political projects is most vivid when turning to the Israeli–Palestinian confl ict. Here, as argued in the opening chapter, history, like law, is part of, not separate from, the confl ict itself.

Some of this contested terrain will be engaged when studying the question of minority group formation and sectarian identities in our case studies. In this chapter, the current status of religious minorities that fall within our territor- ial ambit is the main focus. In Chapter 3, we turn the focus to the status of ethno-national and other minorities. Given the pitfalls detailed, it is unsurprising that there are relatively few published works that endeavour to provide an audit of minorities in the Middle East. Th ere is some writing examining the historical and social realities of particular communities in the Middle East. Th is includes writing focussed on Jews and Christians and case-specifi c studies on the relation- ship between particular ethno-confessional communities and individual states— Copts in Egypt, Berbers in Algeria, Maronites in Lebanon, Baha’is in Iran, and so on. A literature review of the past that attempts to engage more broadly with minorities in the Middle East is revealing; 8 the varied approaches to minority studies often accompanies hegemonic contestation over modern theories on minority group formation and social identity—from the economic and rational

⁴ R Martin, ‘From Dhimmis to Minorities: Shifting Constructions of the non-Muslim Other from Early to Modern Islam’ in M Shatzmiller (ed), Nationalism and Minority Identities in Islamic Societies (McGill-Queens University Press 2005) 3–21, 14.

⁵ Ibid. ⁶ Ibid 19. ⁷ M Shatzmiller, ‘Introduction’ in Shatzmiller (n 4) xiii. ⁸ A few to mention include Hourani’s majestic survey of Minorities in the Middle East , which is one

of the earliest attempts to provide a taxonomy of minority identities in the Middle East. Importantly, Hourani raises, but does not endeavour to answer, some pertinent questions about the underpinnings for such a large amount of linguistic and religious minorities in Arab states. His work was concluded before the formation of the State of Israel and therefore does not address some of the issues that would fl ow from this event, but we take from his work a rather broad defi nition of what constitutes

Introduction 81

school to the modernization confl ictual approach to the revival of primordial schools of thought. All of these fi nd articulation when focussed on minorities in the Middle East. 9

Th is chapter and the following chapter 3 will provide a limited contribution to this literature. While we present an overview of minorities in the Middle East, there remain signifi cant empirical and political obstacles to this undertaking. State reporting on minority communities in the Middle East is rare. Th is is partly driven by the dhimmi discourse and some scholars endeavour to present an ideal- ized past where, under Islamic rule, ‘there was no inequality’. 10 It is also driven

a minority. See A Hourani, Minorities in the Arab World (Oxford University Press 1947). Destani’s invaluable 32 volumes on Minorities in the Middle East is an extensive collection of primary source material. Whilst the collection is limited to material from the early to mid-1800s to the 1970s, and is often narrated from a particular perspective (for example, the four volumes which cover Muslim Minorities in Arab Countries 1843–1973 are defi nitely written from a British perspective), the col- lection does provide original political despatches, correspondence, and reports on key events which examine the relationship of minorities to the various states in the region over a 130-year period: B Destani, Minorities in the Middle East (Cambridge Archive Editions 2006). Somewhat more recent endeavours to look at minority experiences in the Middle East include Schulze, Strokes, and Campbell’s Nationalism, Minorities and Diasporas , Nisan’s Minorities in the Middle East: A History of Struggle and Self-expression (McFarland & Co 2002), Bengio and Ben-Dor’s Minorities and the State in the Arab World (Lynn Rienner 1999), Ma’oz and Sheff er’s Middle Eastern Minorities and Diasporas (Sussex University Press 2002) and the most recent, Nationalism and Minority Identities in Islamic Societies (n 4) edited by Shatzmiller provide an edited collection which, apart from the opening chap- ter, is case specifi c (with signifi cant attention paid to the Israeli–Palestinian case) and written through a socio-legal lens. In the remaining monographs of note, minorities are examined by social scientists (including historians) who bring their own methodological tools into largely case-based examina- tions. Th e results, both between as well as within these writings, are quite mixed. For example, Ma’oz and Sheff er’s 2001 edited collection does not carve any new theoretical ground on minorities and the case studies vary signifi cantly from those that are quite in depth, such as Daphne Tsimhoni’s look at Christians in Israel, to chapters that read as much more superfi cial examinations (the Iraq chapter springs to mind here). Th ere are questionable notions of culture, the ‘role’ of Islam, and the hints of an ‘exceptionalist’ reading of the Middle East that sit uneasily throughout the book. Fox and Marguilies, for example, argue that religion is a ‘more important factor’ in confl icts in the Middle East than in similar confl icts everywhere. Leaving aside the empirical rigour of the work that led to this conclusion, one of the factors they argue may contribute is that the ‘Middle East has a rich and unique culture and history’. Th e same, of course, can be said (and challenged) of any region—and as other empirical studies have argued, ‘Th ere is nothing mysterious or particular about confl ict in the Middle East or in Muslim countries. Confl ict is quite well explained by a general model of civil war . . . ’ see ME S ö rli, NP Gledisch, and H Strand, ‘Why is Th ere So Much Confl ict in the Middle East?’ (2005) 49(1) Journal of Confl ict Resolution 141, 160. It is Nisan’s book, however, that is particu- larly problematic in that he fails to engage with the question of minorities in the Middle East with ‘an attitude of absolute emotional distance and intellectual objectivity’, [21] the very traits he himself notes plague writings in this fi eld. Note that Nisan’s writings, particularly on the Israeli–Palestinian issue, are somewhat revealing. See, in particular, M Nisan, ‘Judaism and politics’ Jerusalem Post , 18 January 1983, in which he argued that ‘the presence of non-Jews in the country is morally and politi- cally irrelevant to the national right of the Jews to settle and possess the land’. In contrast, the most rigorous of recent writings on minorities is Shatzmiller’s edited volume where theory and cases are more rigorously engaged. Of particular note is Martin’s chapter, which looks at the shifting construc- tion of identities (n 4).

⁹ For a good summary of these, see Bengio and Ben-Dor (n 8). ¹⁰ HG Yurdaydin, ‘Non Muslims in Muslim Societies: Th e Historical View’ (1981) 3 Journal of

Muslim Minority Aff airs 183–8.

Minority Identities in the Middle East: Religious Minorities82

by political considerations by states that deny both discriminatory practices and a number of self-determination claims. 11 Th at change is afoot in the Middle East and may alter the relationship of some communities with sites of power is also recognized, and where evident at the time of writing, factored into our analysis. 12

In setting the framework for these chapters, we were clear that this was neither a directory of minorities 13 nor an attempt to trace the historical social formation of the groups. Th e territorial ambit of our study and the minority communi- ties living within it are signifi cant; while we cover substantial ground, it is not exhaustive. Th e variety of historical writings on the region’s ethno-political and religious minorities shows the degree to which the multiplicity of historical nar- ratives impact how we understand contemporary minority rights issues. Rather than unpacking these and detangling ‘only half remembered truths’ from more forensic understandings of the past, we defer to signifi cant writings that under- take these tasks, noting their contributions in relevant sections. Th e rather more modest objective of this review is twofold: to attempt to provide a typology that captures minority identities and to examine the current status of minority groups in the Middle East that reside under these conceptual umbrellas.

1 Non-Muslim Religious Minorities

In this category, we include Jews, and a rather broad number of Christian communities, 14 while accepting that some groups cross-cut this category. Our decision to include these groups here is, in part, purely an empirical decision as smaller Christian denominations, such as Latin/Protestant and Greek Catholics and Orthodox communities are often not distinguished from ‘Christians’ in

¹¹ At least two cases spring to mind here—the Kurds and the Palestinians. ¹² Th at said, in many cases, regime change was unfolding at the time of this writing and whilst

some measures were implemented (or relationships altered) and could be noted, the socio-legal land- scape in countries like Egypt, Syria, Bahrain, and South Sudan remained unstable.

¹³ We are acutely aware that the inclusion of some groups and the exclusion of others may also invite critique but, as we argue, we are not creating a directory but rather focussing on questions related to the politics of identity within the Middle East. Th e groups we have identifi ed go some way to tease out this notion.

¹⁴ We have not included the Yazidi community in this section, although they most comfortably fi t under this category. As a majority of Yazidis (in the Middle East) reside in Iraq, we have examined their status in Chapter 4. A smaller Yazidi population (fi gures range from 10–30,000) is reported to live in Syria. Recent submissions from NGOs to Syria’s UPR stated that ‘Yezidis are denied free- dom of religious practice and other basic rights. According to KIS [Kurdish in Syria], Yezidis face the same discrimination as the rest of the Kurdish population, and in addition suff er from religious persecution. Th ey are prevented from learning the basics of their religion in public schools. KIS rec- ommended that Syria recognise the religious rights of Yezidi Kurds and establish special courts for their religious status cases, such as marriage and divorce.’ See UN Human Rights Council, Summary [Universal Periodic Review]: Syrian Arab Republic/prepared by the Offi ce of the High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1 (25 July 2011) A/HRC/WG.6/12/SYR/3, para 36.

1 Non-Muslim Religious Minorities 83

secondary literature or other reporting. It is therefore not always possible to dis- aggregate a particular community’s numbers or specifi c experience within states from that of other Christian communities. 15 Finally, including these groups in this category signals that while, for some such as Assyrians and Armenians, eth- nicity and historical social formation may distinguish them from the dominant group, their identifi cation as having a minority religion underpins their exclusion from sociopolitical and economic decision-making institutions and, therefore, has given them a ‘minority’ status.

1.1 Jews

According to early writings, the Prophet Mohammed treated the Jews of Arabia with sympathy in the earliest period of Islamic society. By contrast, the relation- ship between Muslims and non-Muslims became contentious during the Medina period as Jews were accused of aiding the Prophet’s Meccan enemies and were, subsequently, expelled. 16 During this period, with Islam in its ascendancy, the relationship between Muslims and non-Muslims ‘required greater diplomacy and social stability’. 17 Th e codifi cation of these relationships had its earliest expres- sion in the form of the Pact of ‘Umar , 18 where dhimmi status was fi rst applied. Peoples of the book who did not accept Islam were given the status of dhimmi , or protected persons. Th is concept of dhimmi was, during the Ottoman Empire, expressed through the millet system, which were ‘hierarchically organized reli- gious bodies with a decidedly political function’. 19

Th e changing nature of relations between Muslims and non-Muslims during the Ottoman period is attributed by some literature to the European infl uence in the region. Favouritism by Europeans of non-Muslims over Muslims ostensibly ‘allowed indigenous Christians, as well as Jews, to achieve positions of power and wealth that were a subversion of the proper dhimmi relationship’. 20 Christians and Jews, unlike their Muslim neighbours, appeared more willing to embrace ‘modernity’ and ultimately created a distance between those ‘who embraced and

¹⁵ Th is is, in large part, because the term ‘Christians’ or the ‘Christian’ community is often used without specifi c reference to the denomination. Th ere are notable exceptions—Maronites, Copts, Assyrians, and Armenians—which are often distinguished and, as such, we are able to provide com- mentary on these groups.

¹⁶ In 622, the Prophet Mohammed left Mecca for Medina during a period known as the Hijra. During the Medina period, Jews were accused of collaborating with the Prophet’s Meccan enemies and were, eventually, forced out of Medina.

¹⁷ Martin (n 4) 5. ¹⁸ ‘Umar was a military commander and a companion of the Prophet Mohammed. During the

Rashidun period, ‘Umar was a second caliph from 634–44. ¹⁹ B Masters, Christians and Jews in the Ottoman Arab World (Cambridge University Press 2001)

61. ²⁰ DE Arzt, ‘Religious Human Rights in Muslim States of the Middle East and North Africa’

(1996) 10 Emory International Law Review 139–62, 156.

Minority Identities in the Middle East: Religious Minorities84

profi ted from’ these advancements and those who did not. 21 Th ough this theme runs through a signifi cant part of the literature of the period, the underpinning of the decision by communities to thwart or accept these changes is left vague. Kuran’s study attempts to explain shifts that occurred in the late eighteenth century. He argues that attributing contrasting approaches to simply a matter of Muslim attitudes or practices or the favouritism of non-Muslims by Europeans paints an incomplete picture raising more questions than answers. 22 Rather than dismissing such factors he focusses on how and why the impact diverges from the dominant narrative. Kuran suggests that non-Muslims had an ‘advantage’ over Muslims in that their dhimmi status allowed them a choice of legal regime (outside criminal matters) and, ‘as Western Europe developed the legal infra- structure of modern capitalism, vast numbers of Christians and Jews made juris- dictional switches by obtaining the protection of European states. Along with tax concessions, they thus gained the ability to conduct business under Western laws.’ 23

Th is, as Master argues, portrays peoples of the Arab provinces of the Ottoman Empire as not merely ‘passive recipients of a changing world order imposed from without by the Europeans’, but as active participants ‘devising strategies to cope with change and benefi t from it’. 24 As Christians and Jews assimilated and prof- ited from importing new ideas and ways of business, they became ‘among the fi rst to imagine, if ever so tentatively, a political identity drawn along ethnic/ linguistic lines’. 25

Jews were largely immune from the sectarian upheavals that consumed Christians in the region. Th eir ‘major experience with sectarianism in the nine- teenth century had come at the hands of Christian and not Muslim antagonists’. 26 Yet, two events had an indelible impact on Jews in the region—the rise of Arab nationalism and the establishment of the State of Israel in 1948. Th ese events fundamentally altered Muslim–Jewish relationships, manifesting in a number of ways. Masters observed that the isolation which had, to a certain extent, insulated Jews from Christian–Muslim confl icts rather ironically also contributed to their vulnerability. Whereas some Christian intellectuals were imagining a political community embracing Arab nationalism as national identity as one means of expressing loyalty, ‘by maintaining a low profi le, the regions Jews had avoided confl ict and collectively they saw no need to rethink intercommunal relations’. 27 Th is isolation ultimately, had:

²¹ Masters (n 19) 7. Whilst this chasm would aff ect the relationships between Christians and Jews and their Muslim neighbours equally, Lewis argues that there was one additional factor that was dis- tinct to the Jewish experience and this was the European import of anti-semitism.

²² T Kuran, ‘Th e Economic Ascent of the Middle East’s Religious Minorities: Th e Role of Islamic Legal Pluralism’ (2004) 33(2) Th e Journal of Legal Studies 475, 482.

²³ Ibid 475. ²⁴ Masters (n 19) 15. ²⁵ Ibid 13. 26 Ibid 174. 27 Ibid 175.

1 Non-Muslim Religious Minorities 85

. . . tragic consequences for the continued survival of the ancient Jewish communities of the Arab east in the twentieth century when the creation of the State of Israel brought into question their loyalty to avowedly nationalist Arab regimes. In much the same way, exter- nal events had led Muslims to question the loyalties of their Christian neighbours in the nineteenth century. 28

It is thus unsurprising to fi nd that Zionism, which held little sway with Jews in the region before World War I, become more appealing post-War. 29 Th at Zionism, the establishment of Israel, and the rise of Arab nationalism played a role in the deterioration of relations between Muslims and Jews is not in question. Th at said, the sectarian entrepreneurship of states (as our case studies detail) fostered an ‘othering’ of minorities, both as a means to exclude groups that do not conform to state ideology and as a distraction from a state’s own repression and exclusion- ary policies. For Jewish minority populations in the Middle East, the ‘success’ of such a strategy is refl ected in the Jewish diaspora that left the Middle East, and in the contentious relationships that unfolded for Jews who remained. We now turn to providing a brief current overview of the status of Jews in our territorial ambit.

1.1.1 Overview Th ere are close to six million Jews living in Israel and an estimated 75,000 Jews living in other parts of the Middle East. Of the 24 states within our territorial ambit, a Jewish population is present in Bahrain, Yemen, Israel, Lebanon, Iraq, Syria, Algeria, Egypt, Morocco, Tunisia, Sudan, Iran, and Afghanistan. Th ree important factors emerge in charting the experience of Jews in these states. First, while Jews experienced some exclusion from sites of power pre-1948, this was exacerbated in the years that followed. Secondly, ‘[t]he history of Jews in Muslim Arab societies was rewritten with an emphasis on the darker side of their experi- ence in the wake of their virtual disappearance from Arab lands after the estab- lishment of the State of Israel in 1948’. 30

Th is is important to note as we look at the historical social formation of the Jewish minority community experience in Muslim-Arab lands. Th e historical underpinnings of Jewish experience in the states we examine are often narrated through a particular lens, leaving much of the pre- and post-1948 historical ter- rain mediated by political (rather than forensic) examination. We endeavour to negotiate this territory carefully. Finally, Jewish minority status moved from one of a religious minority to a politicized identity: that is, being a Jew, following the establishment of Israel, became a political act; external events would become inextricably linked to their living experience.

²⁸ Ibid. ²⁹ Ibid 193. Th is is what Masters characterizes as ‘another religious communal identify reconfi g-

ured as nationalism’. ³⁰ Ibid 4.

Minority Identities in the Middle East: Religious Minorities86

While these factors generally relate to Jews living in these states, there are notable diff erences in practice, in terms of legal protections for religious minori- ties that merit review. In Bahrain, a majority Shi ‛ a country, the Sunni minority enjoys a favoured status. 31 Bahrain’s Constitution states that Islam is the offi - cial religion, 32 though it provides for freedom of religion. 33 Religion or sect is not noted on national identity documents, and there were no reports of forced religious conversion in Bahrain. In none of the US State Department or NGO reporting available were there any instances documented of violence against Jews and, although there is no specifi c provision for Jews regarding freedom to practice religion, similarly, there were no reports of interference with religious worship.

Nevertheless, there were general restrictions on the practice of freedom of reli- gion in Bahrain. For instance, ‘[e]very religious group must obtain a license from the Ministry of Islamic Aff airs to operate’. 34 Th ere is no prohibition on religious conversion. However, ‘converts from Islam to other religious groups were not well tolerated by society’. 35 Such converts were shunned and subject to physical abuse, prompting a number to leave the country permanently.

Th ere is limited information regarding the status of the small Jewish com- munity in Bahrain. Estimates suggest that there are between 40 and 50 Jews in Bahrain from a pre-1948 community of 600. 36 In the aftermath of the establish- ment of the State of Israel in 1948, Jews and Jewish businesses were targeted during ensuing riots and many Jews emigrated during this period. A second wave of immigration followed in 1967 in the aftermath of the Arab–Israeli Six Day War. By the 1960s, there were approximately 200–300 Jews remaining, which dwindled to less than 100 over ensuing years. Th e only synagogue in Bahrain was closed in 1948, and there is no rabbi among the remaining 40–50 Jews. In 2008, King Hamad bin Isa al-Khalifa appointed Huda Azar Nunu, a female attorney and the only Jew in the Shura Council, as ambassador to the United States. 37 He noted that this was an eff ort ‘to show his support for his dwindling Jewish population’. 38 It was the fi rst appointment by an Arab country of a Jewish ambassador. Th e King also travelled to London to convince expatriate Jews to

³¹ See our discussion of the Sunni–Shi’a divide in Bahrain in Chapter 4, section 4. ³² Under Article 2 of the 2002 Constitution. ³³ Article 18 states: ‘People are equal in human dignity, and citizens are equal before the law in

public rights and duties. Th ere shall be no discrimination among them on the basis of sex, origin, lan- guage, religion or creed and under Article 22: Freedom of conscience is absolute. Th e State guarantees the inviolability of worship, and the freedom to perform religious rites and hold religious parades and meetings in accordance with the customs observed in the country.’

³⁴ United States Department of State, 2009 Report on International Religious Freedom—Bahrain (26 October 2009).

³⁵ Ibid. ³⁶ Prior to 1948, Jews were very visible business owners and merchants. ³⁷ See BBC News Report, ‘Bahrain names Jewish ambassador’ (29 May 2008). <http://news.bbc.

co.uk/2/hi/7426806.stm> accessed 2 February 2012. ³⁸ M Slackman, ‘In a landscape of tension, Bahrain embraces its Jews. All 36 of them’ Th e New York

Times , 6 April 2009.

http://news.bbc.co.uk/2/hi/7426806.stm

1 Non-Muslim Religious Minorities 87

return to Bahrain and appointed Jewish business leaders to the Shura Council (upper house of Parliament). Critics argue that this was a strategy to cement ties with the US, rather than a legitimate eff ort at promoting acceptance of Jews. It was also labelled an eff ort to appear religiously tolerant in an attempt to divert attention away from widespread discrimination of Shi’a. Like most states in the region, Bahrain does not have diplomatic relations with Israel; however, it ended its boycott of companies doing business with Israel in 2004.

While Yemen’s Constitution neither protects nor inhibits freedom of religion, Islam is the offi cial state religion and Shar î’ ah , the source of all legislation. 39 Th eoretically, citizens are free to practise their religion; however, the govern- ment prohibits conversion from Islam and the proselytizing of Muslims. In fact, ‘the conversion of a Muslim to another religion was considered apostasy, which the government interpreted as a crime punishable by death’. 40 Additionally, the Constitution requires that the President ‘practice his Islamic duties’. 41 Personal laws prohibit Muslim women from marrying outside Islam and under the Personal Status Law (1992) men are permitted to marry as many as four wives. Th e law prohibits men from marrying non-Muslims, except Jewish and Christian women, or apostates (those who have renounced Islam).

Jews are considered Yemen’s only indigenous religious minority. Whereas the Yemeni Jewish population was once estimated at 50–60,000, these fi g- ures declined as Yemini Jews emigrated to Palestine. Initially this emigration (from 1874) was underpinned by economic opportunity rather than interest in Zionism. However, in 1948, a combination of factors, which included ‘the assassination of the Imam Yahya, a coup d’état, and a civil war’, resulted in the deterioration in the country’s economy. 42 During this time (against the back- drop of the establishment of Israel) ‘the Jewish community in Yemen experienced political and economic persecution, the most serious case being the accusation that Jews in Sana’a had murdered two Muslim girls and the imprisonment of the community leaders’. 43 Although, by 1949, the situation had stabilized and there was no further anti-Jewish incidents in Yemen an Israeli–American enterprise known as ‘Operation Magic Carpet’ was initiated. Between December 1948 and 1951, over 50,000 Yemenite Jews emigrated to Israel. Although the event was commemorated and embedded in the national conscious, becoming part of ‘a constitutive myth that Israeli society tells itself about itself ’, there were signifi cant failures of the operation excised from the history collective memory of state. 44 As Meir-Glitzenstein has observed, beyond just the experiences of the Yemenite

³⁹ Th e Constitution of Yemen, 2001, Articles 2 and 3. ⁴⁰ United States Department of State, International Religious Freedom Report—Yemen (13

September 2011). ⁴¹ Th e Constitution of Yemen, 2001, Article 106(d). ⁴² E Meir-Glitzenstein, ‘Operation Magic Carpet: Constructing the Myth of the Magical

Immigration of Yemenite Jews to Israel’ (2011) 16(3) Israel Studies 149–73, 150. ⁴³ Ibid. 44 Ibid 165.

Minority Identities in the Middle East: Religious Minorities88

community, the cleansed imagery of the event helped to shape and form how immigrants that were coming from Islamic countries would be captured in the public immigration as, ‘oppressed, primitive victims on the one hand and as irrational mystics on the other’. 45 Similarly, Muslims were to be understood as ‘antisemites who harassed, persecuted, and killed Jews’ and against this backdrop Israelis were ‘the redeeming force and Israel as the place of redemption, the site of the fulfi lment of the prophetic vision of the ingathering of the Jewish people in its land and the salvation of the Jews from their bitter fate in exile’. 46 Whilst these images served a larger nation-building project, the realities in each case were far more complicated.

Jews were forbidden to leave Yemen between 1962 and 1991, and when this restriction was lifted, it was reported that 1,200 Yemeni Jews migrated to Israel. 47 Th ose Jews who remain in Yemen were:

. . . caught between Zionists urging migration and Hasidic Satmar Jews urging them to stay and avoid ‘contamination’ in Israel. Emigration of the remaining Yemeni Jews has also slowed due to adverse reports of returnees who found Israel culturally alien or who found their socio-economic conditions diffi cult. Furthermore, the Jewish community has long been widely accepted in Yemen, and many of its remaining members are elderly and thus reluctant to leave. 48

Th e estimated 300 Jews 49 who remain in Yemen are tolerated and allowed to practise their religion, though their participation in civil and political life is limited. Jews own property but are prohibited from serving in the military and from running for elected offi ce. 50 While there are some legislated restrictions, other non-codifi ed practices, concerning restrictions on domicile and work, limit Jewish participation in Yemeni life. Th ere remain restrictions on travel as ‘the Government suspended its policy of allowing Yemeni-origin Israeli passport holders to travel to Yemen on laissez-passer documents’, 51 though no such restric- tions exist for Yemeni, Israeli, and other Jews who travel to Yemen on non-Israeli passports.

While Yemini Jews are excluded from political offi ce, in January 2001, Ibrahim Ezer, a Yemini Jew, was included in the ruling General People’s Party candidates running for parliamentary elections. Th is move was allegedly supported by the

⁴⁵ Ibid 169. ⁴⁶ Ibid. ⁴⁷ M Jordan, ‘Secret mission rescues Yemen’s Jews’, Th e Wall Street Journal , 31 October 2009. ⁴⁸ Minority Rights Group International, World Directory of Minorities and Indigenous Peoples—

Yemen: Jews (2008). ⁴⁹ Th is exact fi gure is contested. Minority Rights Group reports the fi gure to be 370, whereas

the US Department of State suggests the fi gure is closer to 300. United States Department of State (n 40); Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples 2011—Yemen (6 July 2011).

⁵⁰ United States Department of State (n 40). ⁵¹ United States Department of State, Country Report on Human Rights Practices—Yemen

(25 February 2004).

1 Non-Muslim Religious Minorities 89

now-exiled President, Ali Abdallah Salah, and was reportedly a gesture to the incoming Bush administration in a bid to receive economic aid. 52 Th e General Election Committee subsequently rejected Ezer’s application on grounds that a candidate must be the child of two Muslim parents. Political analysts speculated that the true reason was a desire not to establish a precedent of allowing a Jew to run for offi ce.

In 2007 and 2008, threats were directed at the Jewish community by al-Houthi, an armed Shi ‛ a group, 53 with the government responding by relocating the tar- geted communities, 54 providing secure housing and food stipends. 55 Despite gov- ernmental attempts to limit this infl uence, Jews experienced continued threats during 2009. It was reported that Jewish groups in the US responded by under- taking fi nancial and logistical arrangements to evacuate and resettle close to half of the remaining Yemeni Jewish population. Despite these measures, a 2011 Minority Rights Group (MRG) report stated that ‘this tiny minority has contin- ued to face persecution’. 56 Just how recent events in Yemen will alter the political landscape for minorities in Yemen remains unclear.

Th e Jewish experience in Lebanon is ‘unlike the Jewish communities in many other Middle East countries; the Jewish community in Lebanon grew after 1948’. 57 Th e emigration of Jews from Lebanon to Israel and elsewhere was not simply a direct or immediate result of the Arab–Israeli confl ict but rather syn- onymous with the progressive breakdown of the Lebanese political system. Th ere were several waves of Jewish emigration out of Lebanon in the mid-twentieth century. Th e fi rst occurred during the fi rst Lebanese civil war in 1958 and the second followed the Six Day War. Th e Lebanese civil war and internal strife led to additional Jewish emigration and, by 1980, there were reportedly only 200 Jews left in Lebanon. Th e Israeli invasion of 1982 caused a number of Jewish é migr é s to return to Lebanon. Within Lebanese civil society, Jews became associated with Israel after the Israeli invasion and when Israel withdrew in 1984, ‘the situation of the remaining Jewish families [in Lebanon] deteriorated rapidly’. 58 As Schulze detailed, the historical experience of Jews in Lebanon diff ered in the period that followed the establishment of the Israeli state. Subsequent Israeli interventions in Lebanon and the ongoing (and unresolved) territorial dispute within the region led to the deconstruction of Lebanese Jewish identity. Here and elsewhere in the region, being Jewish became inextricably linked with Israel. 59

⁵² ‘Yemen, Yemen–Israel Linkages’ (2001) 42(1) APS Diplomat Strategic Balance in the Middle East .

⁵³ Th e group has been waging an internal war against the government claiming discrimination against Shi ‛ a.

⁵⁴ Noted in Minority Rights Group International (n 49). ⁵⁵ Jordan (n 47). ⁵⁶ Minority Rights Group International (n 49). ⁵⁷ K Schulze, Th e Jews of Lebanon: Between Coexistence and Confl ict (Sussex Academic Press 2007) 4. ⁵⁸ Ibid 8. ⁵⁹ Hizbollah (as in Chapter 1) presence in Lebanon also plays a role here. Established in 1982, it

is both a military (Islamic Resistance) and political force, made up mainly of Shi ‛ a Muslims. Whilst

Minority Identities in the Middle East: Religious Minorities90

While the nature of Lebanon’s political system is detailed in Chapter 6, it is worth noting that, although there is a confessional distribution of public offi ces, UN and other monitoring bodies indicate that the Lebanese govern- ment generally respects religious rights. 60 Religious freedom is guaranteed in the Constitution, though religious groups must register in order to conduct religious activities. 61 Jews are one of 18 offi cially recognized minority religious groups. 62 As well, the government does not require that religious affi liation be indicated on passports and, as of 2009, there is no longer a requirement for religious affi liation to be noted on national identity cards or civil registry records. 63

However, religion and religious diff erences are interwoven into the sociopoliti- cal fabric in Lebanon and there are signifi cant diff erences between Muslim and Christian parties as to the role of religion in public life. In addition, religious leaders in Lebanon are politically active across the sectarian spectrum and this is manifested in the public square as such leaders and groups vie for position and power. Despite these tensions, in the period prior to the civil war, there remained a fragile, but functioning, democracy. Post civil war, there is greater segregation across the confessional system.

While the Jewish population in Syria in 1948 was estimated at 30,000, current fi gures suggest that only 100–200 Jews remain. Th e literature shows that the sta- tus of Jews in Syria follows similar narratives to the Jewish experience throughout the region; that is, following the establishment of Israel in 1948, their situation deteriorated signifi cantly. According to this literature, Jews were systematically subjected to policies of discrimination and attacks that underpinned their exodus from Syria. Still others argue that Israel and Zionist policies aimed at Syrian Jews deliberately stirred ‘religious emotions’, and contributed to the sectarianism that followed. 64

Th ere is, therefore, in Syria and elsewhere in the region, a meta-narrative on the history of Jews in Muslim-Arab societies—either proff ering a Jewish–Muslim golden age, or suggesting deep-seated religious intolerance that existed well before, but was awakened by, events of 1948. 65 Trying to disentangle the historical

the political wing of the organization is active within Lebanon, hostility to Israel has underpinned its main party platform. Th e organization does not recognize Israel’s right to exist and has called for the destruction of the State of Israel.

⁶⁰ See, Working Group on the Universal Periodic Review Lebanon (12 January 2001) A/ HRC/16/18; United States Department of State, International Religious Freedom Report—Lebanon (13 September 2011).

⁶¹ United States Department of State (n 60). ⁶² Ibid. ⁶³ Human Rights Watch, ‘Lebanon: Removal of Religion from IDs Positive but not Suffi cient’ (16

February 2009). ⁶⁴ U al-Ghazzi, ‘Jews in Syria. A Survey of the Present Situation of the Jews of Syria’ (1973) Shu’un

Filastiniya , reprinted in (1973) 2(4) Journal of Palestine Studies 134–9, 135. ⁶⁵ Masters (n 19) 4.

1 Non-Muslim Religious Minorities 91

revisionism that consumes so much of this literature is beyond the scope of this review. What is accurate to note is that external events had and continue to have a signifi cant impact on Jews in Syria, and the legacy of the recalibration of Jewish– Muslim relations, that occurred in 1948, continues to date.

Recently, MRG and the United States Department of State both report restric- tions and discrimination in Syria for its remaining Jewish community. MRG notes that Syria’s remaining Jewish community is ‘treated with suspicion by the state. Th ey must have government permission to travel, and they are subject to extra state scrutiny and are excluded from employment in the civil service and armed forces.’ 66 Th e 2010 entry on Syria in the US International Religious Freedom Report notes that whilst the government allows religious minorities contacts with co-religionists in other countries, ‘contact between the Jewish com- munity and Jews in Israel’ 67 is prohibited. 68

Whilst we examine the legal framework for minorities in Syria in Chapter 5, a few aspects of the socio-legal landscape in Syria merit note here. Although Syria does not have an offi cial state religion, the Constitution states that the President must be a Muslim and that Shar î’ ah is the principle source of legislation. Under Article 2 of the 1973 Constitution, the President must be Muslim and Islamic jurisprudence is the source of law. Th e Constitution does contain an equality pro- vision (Article 25) and provides for freedom of religion, save for where it confl icts with public order (Article 35).

Th e Syrian government requires religions and religious orders to register, and monitors ‘fundraising and the distribution of permits for non-worship oriented religious and nonreligious group meetings’. 69 Th e registration process is com- plicated and lengthy, though groups are allowed to operate informally while awaiting approval. Recognized religious institutions and clergy, including all government-recognized Muslim, Jewish, and Christian organizations, receive free utilities and are exempt from real estate taxes on religious buildings and personal property taxes on their offi cial vehicles. While there are no specifi c laws against distribution of religious literature, the Syrian penal code prohibits ‘caus- ing tension between religious communities’, which the government has used to prosecute groups it deems ‘harmful to society’. 70

⁶⁶ Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples 2011—Syria (6 July 2011).

⁶⁷ United States Department of State, International Religious Freedom Report—Syria (13 September 2011).

⁶⁸ Th is was enacted through state of emergency legislation. ⁶⁹ United States Department of State (n 67) 3. ⁷⁰ Article 295 states: ‘Anyone in Syria who, in wartime or at a time when war is expected to break

out, engages in propaganda aimed at weakening national sentiment or at arousing ethnic or sectarian tension is to be punished by temporary detention.’ Th is has been applied particularly to those viewed as Salafi sts.

Minority Identities in the Middle East: Religious Minorities92

With an exception for the Catholic Community, 71 Syrian family law (1953) 72 applies to all Syrian citizens in matters of personal status including inheritance, guardianship, kinship, and adoption and is guided by Shar î’ ah. For matters related to marriage and divorce, Articles 307 and 308 provide autonomy for Druze, Jewish, and Christian denominations to apply their own family laws through Courts of Personal Aff airs. 73

During Algeria’s independence struggle in the late 1950s and early 1960s, the Front de Lib é ration Nationale (FLN) 74 enlisted the support of Algeria’s Jews, with the promise that they would be protected in a newly independent Algeria. However, the struggle for Algerian independence collided with events within Palestine, increasing hostility towards Jews in the wider region and resulting in mass Jewish emigration to France and Israel. 75 After the 1965 coup led by Colonel Houari Boum é di è ne, the situation deteriorated for Algeria’s remaining Jews, and by 1982 most of the Jewish community had left. 76 During the 1980s, Front Islamique du Salut (FIS) installed Imams and used Islamic formulations of law to call for the ‘enemies of Islam’, including Christians and Jews, to be pun- ished. During this period, it was reported that Christians, Jews, reporters, and women were killed. Th e Algerian Civil War during the 1990s prompted another wave of emigration of Christian and Jewish populations. Th e population to date is unknown, but a 2002 report by Abdelfattah Amor, UN Special Rapporteur on freedom of religion or belief, noted that:

According to the Ministry of the Interior’s Director of Public Liberties, there may be around 1,000 Jews living in Algiers, Blida and Constantine, but all those interviewed felt that there was no longer a real Jewish community and no working synagogue. 77

Th e 1996 Constitution of Algeria includes human rights 78 and equality 79 pro- visions and prohibits political party organization on a religious basis. 80 Th e

⁷¹ Th is exception is provided under the 2006 Code of Personal Status for Catholics Communities in Syria, Law No 31. Th is provision provides Christian Catholics in Syria with a separate code of personal status, which removes them from the ambit of the application of the Islamic personal status code and provides complete legislative and judicial freedom in matters of personal status.

⁷² Th is is also known as the Syrian Law of Personal Status, amended in 1975. ⁷³ R Maktabi, ‘Gender, Family Law and Citizenship in Syria’ (2010) 14(5) Citizenship Studies

557–72, 561. ⁷⁴ Established in 1954, the FLN drew together a number of smaller groups and waged an armed

campaign against France for independence in Algeria. ⁷⁵ Minority Rights Group International, World Directory of Minorities and Indigenous Peoples—

Algeria: Overview (2007). ⁷⁶ For more details on this, see M Laskier, North African Jewry in the Twentieth Century: Th e Jews of

Morocco, Tunisia and Algeria (New York: New York University Press 1994). ⁷⁷ UN Commission on Human Rights, Report by Mr Abdelfattah Amor, Special Rapporteur on

Freedom of Religion or Belief (9 January 2003) E/CN.4/2003/66/Add.1, para 33. ⁷⁸ Article 33, Constitution of Algeria, adopted 1963. ⁷⁹ Th is ostensibly includes religious affi liation. Equality provisions are under Article 29 and reli-

gion is under Article 27. ⁸⁰ Constitution of Algeria, Article 42. Th at said, two parties founded in the 1990s and which

were politically active were Islamist—Mohfoud Nannah’s Movement for Islamic Society (MSI) and Abdallah Djaballah’s Islah Movement.

1 Non-Muslim Religious Minorities 93

Constitution requires the President to be Muslim, 81 but there are no other restrictions on non-Muslims holding other offi cial offi ces. 82 However, there are, in practice, signifi cant limitations on religious freedoms in Algeria. For instance, Ordinance 06–03 (2006) ostensibly allows non-Muslims to practise their religion, but there are several caveats, including that the exercise of such rights are consist- ent with needs of public order, morality, and the rights and basic freedoms of oth- ers. Th e Ordinance provides fi nes for proselytization that are not always enforced. Th e government denies that the Ordinance is discriminatory, arguing that the same penalties apply to Muslims and non-Muslims alike. In practice, however, it has enabled restriction of private informal religious services through a regime of registration with the government prior to conducting any religious activity. 83 Th e body empowered with receiving registrations, the National Commission for Non-Muslim Religious Services, did not establish an administrative mechanism for registration of non-Muslim religious groups. 84 Th e Catholic Church was the only offi cially recognized non-Muslim religious group registered until 1974. 85 In July 2009, the fi rst offi cial Jewish organization was accredited, though other religious groups have had registration requests pending for several years. 86

Th e historiography of the Jewish population in Egypt follows similar contested narratives to that of other Middle Eastern states. Th ere is the Zionist representa- tion, ‘[t]hat emphasizes the continuity of oppression and persecution from the time of Muhammad until the demise of most Arab-Jewish communities in the aftermath of the 1948 Arab–Israeli war’ 87 and the ‘common Arab claim that Jews were always well treated in the lands of Islam’. 88 As we have (and will) detail, both narratives are quite limited and refl ect a political, rather than historical articula- tion of the relationship between Jews and Arab in Egypt.

While the participation of religious minorities in Egypt’s public square was limited, Egypt was generally considered hospitable towards its Jewish population and a place of sanctuary for signifi cant numbers of Jews fl eeing Nazi hostilities in Europe. Th e 1936–39 Arab–Jewish hostilities in Palestine, combined with

⁸¹ Constitution of Algeria, Article 73. ⁸² However, a 2011 report by the US Department of State notes that there remains considerable

‘anecdotal evidence’ of non-Muslims not being promoted to senior posts, with the result that many hide their religious affi liation. See, United States Department of State, International Religious Freedom Report—Algeria (13 September 2011).

⁸³ UN Human Rights Council, Report of the Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir (8 March 2007) A/HRC/4/21/Add.1, paras 10–12 and 13–15; See also Amnesty International, Annual Report 2011—Algeria (13 May 2011); Human Rights Watch, World Report 2012—Algeria (22 January 2012), and Human Rights Watch, World Report 2010—Algeria (20 January 2010).

⁸⁴ Th is is for the reporting period through 2010: United States Department of State (n 82). ⁸⁵ Protestant Church of Algeria (EPA); the EPA was ordered, under the 2006 legislation, to

close seven of their ‘unauthorized’ places of worship. See Human Rights Watch, World Report 2012— Algeria (22 January 2012).

⁸⁶ United States Department of State (n 82). ⁸⁷ J Beinin, Egyptian Jews: Culture, Politics, and the Formation of a Modern Diaspora (University of

California Press 1998) 14. ⁸⁸ Ibid 17.

Minority Identities in the Middle East: Religious Minorities94

the rise of Nazism, had a profound eff ect on Egypt’s Jewish population. Th e establishment of the Society of Muslim Brothers and Young Egypt refl ected the rise of Arab nationalism, and these groups embraced distinctly anti-Jewish rhet- oric. Th e increasing ethno-nationalist rhetoric created a hostile environment for non-nationals in general, with violence directed at Jews in the lead-up to, and following, the establishment of Israel in 1948.

Th at ‘anti-Zionism spilled over into anti-Semitism’ in Egypt is beyond doubt but, as Beinin observes, it was the end of the colonial era in Egypt that led ‘[m]ost members of the mutamassir 89 communities [to leave] Egypt after 1956, which sug- gests that a large proportion of the Jewish community might have left Egypt in the 1950’s whether or not there had been an Arab–Israeli confl ict and regardless of any specifi c measures the Egyptian authorities directed against Jews’. 90 Beinin argues against a reading of the status of Egyptian Jews as uninterrupted persecution that peaked after 1948, suggesting a reality that was far more complicated.

Th e events in Palestine did have a signifi cant impact on Egyptian Jews. Anti-Jewish rioting in November 1945, and the attacks on the community that followed in 1948, ‘highlighted the vulnerability of the Jewish community to the consequences of the confl ict over Palestine’. 91 As a result of these attacks, many Jews began to emigrate. On the eve of the 1956 war, 50,000 Jews remained in Egypt. 92 In the context of the Suez war between Israel and Egypt in 1956, 93 the Egyptian government detained 1,000 Jews. 94 Many others were expelled and their property confi scated; 95 an event that recurred during the 1967 war, when Jewish homes and property were confi scated. By the beginning of the 1967 war, only 6,000 Jews remained in Egypt.

Th ere are estimated to be only 125 Jews currently in Egypt. Before February 2011, when Hosni Mubarak stepped down as President, the relationship between the minority religious communities and the state was the focus of scholarly (and wider) debate. 96 Moustafa notes that, during his regime, Mubarak co-opted religious insti- tutions, often by ‘purge and control’, 97 at other times, by subvention, 98 and ‘peri- odically use[d] religious institutions and symbolism to shore up its legitimacy’. 99

⁸⁹ Meaning resident ethnic minority. ⁹⁰ Beinin (n 87) 21. ⁹¹ Ibid 65. ⁹² Ibid 70–1. ⁹³ Apart from the establishment of the State of Israel, the other signifi cant event that impacted

Jewish–Arab relations in Egypt was the Zionist Operation Susannah. During this Operation Egyptian, Jews working as spies for Israel fi rebombed a number of sites in the country. When the ‘ter- rorists’ were brought to trial in December 1954, Israel and its Western supporters launched a major campaign against their trial, accusing Egypt of anti-Semitism.

⁹⁴ Of these, 500 were citizens. ⁹⁵ Beinin (n 87) 88. ⁹⁶ As we examine in section 4.2, this is especially true with regard to Egyptian Copts. ⁹⁷ T Moustafa, ‘Confl ict and Cooperation between the State and Religious Institutions in

Contemporary Egypt’ (2000) 32 International Journal of Middle East Studies 3–22, 3. ⁹⁸ Ibid 19. ⁹⁹ Ibid.

1 Non-Muslim Religious Minorities 95

Yet this ‘piety card’ would, in the end, be a double-edged sword because of the state’s inability to monopolize religious rhetoric. 100

An amendment to the Penal code was introduced in 2006, ostensibly, to pro- mote greater engagement and toleration for religious freedom. 101 Under Article 98(f ) of Egypt’s 1937 Penal Code, 102 citizens were prohibited from ‘exploit[ing] religion in order to promote extremist ideologies by word of mouth, in writing or in any other manner, with a view to stirring up sedition, disparaging or contempt of any divine religion or its adherents’. 103 However, in practice, this provision was often misused to enable:

. . . the Egyptian Government to restrict freedom of expression and of the media, criminal- ize the holding or expression of certain religious beliefs and views, prosecute members of religious minorities, punish critical academic research, censor forms of artistic expression deemed to contravene religious or moral codes, or justify offi cial or societal bigotry against religious minorities, including minority groups or beliefs within the Muslim faith. 104

Although there were no reports found to indicate that this law was used to pros- ecute anti-Semitism, Human Rights Watch reported that, under this law, indi- viduals were charged ‘for public adherence to a non-orthodox understanding of Islam or Christianity’, 105 and Amnesty International reported that this law was applied ‘to criminalize freedom of opinion and expression, and to punish journal- ists, bloggers and others who are considered to be critical of the authorities’. 106

In post-Mubarak Egypt, there has been a signifi cant amount of reporting which suggests that religious minorities are under grave threat. In April 2011, United States Commission on International Religious Freedom (USCIRF) ele- vated Egypt to a country of concern and noted that:

Religious freedom conditions in Egypt have deteriorated under the Mubarak regime over the past several years, particularly for religious minorities. Since February 11, religious freedom conditions have not improved and attacks targeting religious minorities have continued. 107

¹⁰⁰ T Moustafa, Th e Struggle for Constitutional Power: Law Politics and Economic Development in Egypt (Cambridge University Press 2007) 37. ¹⁰¹ United States Commission on International Religious Freedom, Annual Report—Countries of

Particular Concern: Egypt (28 April 2011). ¹⁰² Amended in 2006. ¹⁰³ English version of text on fi le with authors. ¹⁰⁴ Submission by Egyptian Initiative for Personal Rights and the Cairo Institute for Human Rights

Studies to 9th session of the UN Human Rights Council (2008) (on fi le with author). ¹⁰⁵ Human Rights Watch, UPR Submission: Egypt, Freedom of Religion (September 2009): <http://

www.hrw.org/news/2010/02/16/upr-submission-egypt-september-2009> accessed 7 February 2012. ¹⁰⁶ Amnesty International, Egypt: Free Expression Still Outlawed in Egypt (22 December 2009) AI

index: MDE 12/022/2009. ¹⁰⁷ United States Commission on International Religious Freedom (n 101).

http://www.hrw.org/news/2010/02/16/upr-submission-egypt-september-2009

Minority Identities in the Middle East: Religious Minorities96

Violence against minorities, especially reported against Egyptian Copts, which is something we return to later in this chapter, have been depicted as sectarian. Yet, the Rash ô mon eff ect 108 of some of these reports suggests that the sectarian entrepreneurship that has (and continues to) frame the identity politics of the region is again at play.

Th e current Jewish population of Morocco 109 is estimated at 2,700, a signifi - cant drop from the nearly 300,000 in the lead-up to World War II. 110 Th e dwin- dling numbers are the result of a number of factors, some shared with other states and some specifi c to Morocco. Gunther has suggested that there are four factors explaining the emigration patterns for Jews. First, Moroccan Jews were religious and ‘inspired’ by Zionism and attracted to living in Israel. Secondly, this potential was exploited by Zionists who recognized that Moroccan Jews would be readily adaptable to the climate and culture in Israel; he noted that 70 per cent of Moroccan Jews that emigrated went to Israel. Th irdly, like other Jews in the region, the Holocaust had a profound eff ect on Moroccan Jews. He notes that, although the targeting of Jewish populations and businesses during the 1940s was less sustained than elsewhere, 111 and, while there were constitutional protec- tions and ties to the territory, the establishment of an independent Morocco in 1956 left many Jews uneasy about their future in an increasingly hostile region. 112 Finally, younger Jews often sought higher education abroad and, once abroad, would not return, citing greater opportunity elsewhere. Th is led to an increas- ingly aged Jewish population in Morocco, despite periodic attempts to ebb the emigration levels.

Th e current government in Morocco has taken initiatives to protect the Jewish population, and Morocco and Israel have maintained relatively good diplomatic relations. Jews hold prominent government and business positions and travel freely. 113 Th e Conseil des Communautes Israelites in Casablanca is the main Jewish organization and has a fairly public profi le. Whilst there have been acts of vio- lence and vandalism directed at Jewish places of business and worship in the past, the government has responded publicly to these acts, declaring support

¹⁰⁸ Th is term is used to capture the subjectivity of perception or memory of an event and is often used to describe the reasons why one event can produce several diff erent, but equally plausible explanations. ¹⁰⁹ For a historical overview of Moroccan Jews, see, DJ Schroeter, ‘Th e Shifting Boundaries of

Moroccan Jewish Identities’ (2008) 15(1) Jewish Social Studies , Sephardi Identities 145–64. For an ethnographic approach, see, A Levy, ‘Notes on Jewish–Muslim Relationships: Revisiting the Vanishing Moroccan Jewish Community’ (2003) 18(3) Cultural Anthropology 365–97. ¹¹⁰ R Gunther, ‘Morocco’s Last Jews’ (1997) 46(4) Judaism 489–91, 490. ¹¹¹ In Oujda and Djerada, riots were reported in 1948. A number of Jews were killed and wounded.

Also, in the lead-up to 1948, an unoffi cial boycott of Jewish-owned businesses was reported. ¹¹² Th e government prevented immigration to Israel in 1956, but this was lifted in 1963. It is

reported that when the ban was lifted, over 100,000 Jews immigrated to Israel. ¹¹³ As well, relatives living outside of Morocco, including those from Israel, are able to travel to

Morocco without impediment.

1 Non-Muslim Religious Minorities 97

for the community and condemning sectarianism. 114 A 2010 report from the USCIRF noted that ‘Jewish citizens openly practiced their faith and lived in safety throughout the country during the reporting period’. 115

Morocco’s hybrid legal system allows Jews autonomy over personal status mat- ters. Rabbinical authorities can administer Jewish family courts as court offi cials and deal with issues involving marriage, inheritance, and other family matters. Th is is unique to Jews as Christians and other non-Muslims are subject to the regular court system. 116 Reports also note several other indicators of favourable minority practices by the government, including ‘special protection to Jewish community members, visitors, and institutions, as well as the foreign resident Christian community’. 117

Th e government funds the teaching of Islam in all public schools and Judaism in some schools through its annual education budget, with the Ministry of National Education determining the curricula to be followed. Although many Jewish schools closed in 1992, there has been a recent revival of such schools in Casablanca where ten schools with 800 children currently function. Post-secondary level, government funds are available for the study of Jewish her- itage. Th e University of Rabat off ers courses in Hebrew and comparative religion, and there are 13 professors country-wide who teach Hebrew. Th e Ministry of Endowments and Islamic Aff airs funds a graduate-level theological course, which includes Christian and Jewish thought and also makes available training for men and women who wish to teach in mosques or work as counsellors. 118

In June 2011, King Mohammed VI announced a series of reforms to be included in a new constitution for Morocco, approved in a referendum in July 2011. Th e changes to the Constitution are signifi cant. Articles 10 and 11 increase representation in government commissions of political parties, and access to pub- lic fi nancing for campaigns is expanded. It also provides the rights of civil asso- ciations and NGOs (Article 12) as well as private citizens to bring forward bills (Article 14) and petitions (Article 15). 119 Th e Constitution defi nes Morocco as a

¹¹⁴ Vandals attacked a synagogue in October 2000 and, in 2003, there was a series of suicide attacks on Jewish targets in Casablanca (which killed a number of Muslims). Both events evoked strong responses from King Mohammed VI, who very publicly showed his support (following in the tradi- tion of his father King Hussain) for the country’s Jewish population. ¹¹⁵ United States Department of State, International Religious Freedom Report—Morocco (13

September 2011). ¹¹⁶ Th at said, inheritance for Christians is dealt with by civil, not Islamic law. ¹¹⁷ United States Department of State (n 115). ¹¹⁸ Ibid. ¹¹⁹ Th e King’s executive powers, to name the prime minister and approve the cabinet over which he

presides (Articles 47 and 48); command the military (Article 53); chair the various high councils on religion, security, and the judiciary (Articles 41, 54, 56); name ambassadors (Article 55); approve the nomination of judges (Article 57); pronounce all enacted laws (Article 50); and at ‘His initiative’ dis- miss ministers and dissolve the parliament (Articles 47 and 51) remain, prompting some of his critics to suggest that the constitutional reforms do not go far enough.

Minority Identities in the Middle East: Religious Minorities98

Muslim state in the preamble and states that Islam is the state religion in Article 3, but it also guarantees freedom of religious practices to all faiths. Under Article 19 of the previous Constitution, the King’s role as leader and spiritual leader were interlinked. Th e new Constitution divides these roles; under Article 41, the King is the ‘commander of the faithful’ who ‘ensures respect for Islam’ and guarantees ‘the free exercise of religion’. Under Article 42, the King is named as Morocco’s ‘chief of state, supreme representative, symbol of the unity of the nation, guaran- tor of the durability and continuity of the state’. Th e reforms, however, are lim- ited 120 and refl ect rather tentative steps in the government’s response to Morocco’s own political awakening of the ‘Arab Spring’.

Tunisia became part of the Ottoman Empire in the late sixteenth century, and a French protectorate in 1881. Except during a brief German occupa- tion in World War II, which ended in 1943 when many Jews were impris- oned in forced labour camps, Muslim–Jewish relations were not contentious. During the early 1950s, there were some reports ‘of small scale pillaging of Jewish stores’ 121 but until ‘mid 1952, the Jews were not seriously aff ected by the political developments arising from the nationalists struggle against the French’. 122 Whilst there is some confl ict in the reporting from that time, what is clear is that there were organized violent clashes targeting Jewish proper- ties during this period. What is unclear is whether these were the result of a perception that Jews were collaborating with the French or whether it was apolitical. 123

In his examination of North African Jewry, Laskier suggests that two factors were at play during the period leading up to independence. Th e fi rst was that Jews in Tunisia, as in other parts of North Africa, were ‘losing their importance’ in trade and commerce. 124 Th ey were also feeling pressured by the French and Muslim nationalists ‘to take sides’. 125 Laskier challenges claims that the politi- cal instability in 1953–54 led to ‘a genuine psychose d’aff olement (psychosis of panic)’, resulting in an increase in emigration to Israel between 1955 and 1956, when Tunisia became independent. 126 Rather Laskier notes, Jewish immigration to Israel in 1948 and after is complex, suggesting that the historical and political narratives of the time were intertwined. He states:

. . . the major development is clear: during 1955–56 Jewish emigration in general from Tunisia increased though not on a very large scale and, as noted, not in an atmosphere of panic. Whereas 16,493 emigrated to Israel during the six year period between 1948 and 1953, 15,300 arrived during the three year period between 1954 and 1956. 127

¹²⁰ For example, under Article 46, the authority of the King remains inviolable and anyone who challenges it is subject to persecution. ¹²¹ Laskier (n 76) 260. ¹²² Ibid 260. 123 Ibid 261. 124 Ibid 263. ¹²⁵ Ibid. 126 Ibid 264. 127 Ibid 274.

1 Non-Muslim Religious Minorities 99

In post-independent Tunisia, the fears of many in the Jewish community, that had accompanied the decolonization process, ‘proved to be largely unfounded’ 128 and the position of Jews:

. . . was one of relative prosperity and considerable, if intermittent, political freedom. Jews occupied high positions in government, business, journalism, teaching, and so forth; Jewish organizations operated with comparative eff ectiveness; and the fortunes of most wealthy Jews were left intact. None of this is to say that Jews had total economic and political freedom or were without serious complaints. But, since economic diffi culties and a measure of authoritarianism aff ected Muslims as well as Jews, many Jews did not feel dis- criminated against and considered their situation comparatively satisfactory. As a result, a sizable minority of each community chose to remain and play a part in the life of the newly independent nations. 129

Th at said, the legacy of perceived Jewish sympathies with the French, combined with wider Muslim–Jewish tensions and violence (especially in Algeria), would ‘encourage Jews to leave in increasing numbers’ 130 and, since the early 1960s, ‘the position of the Jews in Tunisia and Morocco has gradually deteriorated and the contradictions of Jewish life in North Africa have come to the fore. On both offi cial and personal levels, numerous examples of both excellent Arab–Jewish relations and incidents Jews consider harassment can be found’. 131

By 1962, the Jewish population was approximately 30,000; by 1975, that fi gure was reported to be 6,000. Tessler and Hawkins note that the emigra- tion of Jews from North Africa was underpinned by a number of factors that included, but was not limited to, violence and harassment. 132 Currently, there are estimated to be between 1,500 and 1,600 Jews remaining in Tunisia, with approximately one-third living in and around Tunis, with the remainder resid- ing on the island of Djerba and in neighbouring Zarzis, where the community has been at present uninterrupted for 2,500 years. 133 During its last reporting period ending December 2010, 134 the US State Department report on religious freedom reported no government interference with Tunisia’s Jewish communi- ties’ religious practices. It noted that the government recognized all Christian and Jewish organizations that were established before 1956, that it ‘permitted the Jewish community to operate private religious schools’ and accommodated

¹²⁸ Ibid 287. ¹²⁹ MA Tessler and LL Hawkins, ‘Th e Political Culture of Jews in Tunisia and Morocco’ (1980)

11(1) International Journal of Middle East Studies 59–86, 62. ¹³⁰ Laskier (n 76) 301. ¹³¹ Tessler and Hawkins (n 129) 62. ¹³² Ibid 64–9. ¹³³ Th ese fi gures are derived from Minority Rights Group International, World Directory of

Minorities and Indigenous Peoples—Tunisia: Overview (2007) and United States Department of State, International Religious Freedom Report—Tunisia (13 September 2011). ¹³⁴ Shortly after, in January 2012, President Zine el-Abidine Ben Ali fl ed the country in what would

be the fi rst in a number of uprisings and regime changes in the Middle East.

Minority Identities in the Middle East: Religious Minorities100

religious calendars for the academic calendar. 135 In terms of political representa- tion, Tunisia is the only country in the Arab world with a Jewish legislator, who also serves as president of the country’s Jewish community. 136

Th ere is a common narrative for the political unrest that began in Tunisia and spread across the Middle East in 2011; a political awakening of the socially, economically, and politically marginalized. President Zine El Abidine Ben Ali, who had ruled for 23 years, was forced from offi ce in January 2011 and since his departure the sociopolitical landscape in Tunisia has been rapidly changing. 137 In October 2011, elections were held in which the moderate Islamist Ennahda Party emerged with slightly more than 41 per cent of the Assembly’s seats. 138 Th e Assembly has been tasked with drafting a new constitution and appointing a transitional government. Ennahda will rule in a coalition with secular parties signalling a clear break with the enforced secularism that previously dominated Tunisia’s political landscape. Just how this will impact Tunisia’s religious minori- ties is unclear. Ennadha, as the largest party, has the ‘paradoxical task of protect- ing minority rights while maintaining a truly Islamic character’. 139 How this will be balanced remains uncertain. For the moment, Ennahda’s public commitment ensures freedom of religion for all and ‘brotherhood with Tunisia’s Jewish and Christian communities’. 140 Although mainly symbolic, these early tentative steps are positive signs.

Th ere is limited historical literature that examines the Jewish community in Sudan. 141 Th e presence of the mainly Sephardic community dates back to the late nineteenth century 142 and was located in and around Khartoum. Th e com- munity thrived during the 1930s and 1940s during which ‘it numbered some 800–1,000 members’. 143 However, by the 1960s, most of the community in Sudan had left the country. 144 In 1986, the synagogue in Khartoum, which had been

¹³⁵ United States Department of State (n 133). ¹³⁶ He is 81-year-old Sen Roger Bismuth. L Luxner, ‘Tunisian Synagogues Flourish Th ough the

Jews have Gone’ (2008) 390 Th e Middle East Magazine 50–5. ¹³⁷ For current information on and analysis of these events, see Middle East Research and

Information Project at <http://www.merip.org> accessed 14 March 2012. ¹³⁸ It won 90 of the 217 Assembly seats. ¹³⁹ E Parker, ‘Tunisia’s election results and the question of minorities’ Jadaliyya (28 November

2011): <http://www.jadaliyya.com/pages/index/3310/tunisias-election-results-and-the-question-of- mino> accessed 12 February 2012. ¹⁴⁰ Ibid. ¹⁴¹ One notable, but fl awed, exception is ES Malka, Jacob’s Children in the Land of the Mahdi: Jews

of the Sudan (Syracuse University Press 1997). Malka’s father, Solomon Malka, was the Chief Rabbi in Sudan from 1906 to 1949. ¹⁴² Malka dates this to 1885 when he indicates that there were only eight Sephardic families in

Sudan. ¹⁴³ A synagogue was built during the mid-1920s. ¹⁴⁴ In the 1980s, Sudan also served as a transit point for an Israeli campaign to relocate all Ethiopian

Jews fl eeing the economic and political instability in Ethiopia to Israel. See details of ‘Operation Moses’, which began on 21 November 1984, and continued until 5 January 1985. See AM Aaron, ‘Humanitarian Intervention, Nationality and the Rights of Refugees—Operation Moses: Th e Israeli Airlift of Ethiopian Jews’ (1985) 26 Harvard Journal of International Law 585–93.

http://www.merip.org

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1 Non-Muslim Religious Minorities 101

unused since the 1960s, was sold. 145 Warburg notes that ‘by the early 1970s, the former members of the small but fl ourishing Jewish community of Sudan were scattered in Europe, the United States and Israel’. 146 Th ere are, however, reports that there remains a small group of Jews still living in the capital, 147 and, while there were no reports of anti-Semitic violence, ‘anti-Semitic rhetoric was common in both the offi cial media and statements by NCP offi cials in the North’. 148

Th ere is signifi cant research on the history and status of Jews in Iran. Th e Jewish community is one of the largest and oldest settled non-Muslim com- munities, and pre-dates Christian presence in Iran. Th ere is some evidence to suggest that the persecution of Jews in Iran pre-dates the arrival of Islam, but, for much of the literature that engages with minorities in Iran, it is the Safavid Dynasty (1501–1722) that marked the beginning of anti-Jewish sentiment and of mistreatment. In some cases the persecution was shared with Christians and Zoastrians, 149 yet a number of scholars argue that the treatment of Jews was par- ticularly severe. 150 In her review of literature that documented the religious and ethnic landscape in Iran, Sanasarian notes that:

Pressure on religious minorities visibly increased in the Islamic era. Although they were given the status of ahl al-dhimmah and ahl al-kitab and therefore enjoyed an autonomous status in internal matters, they were also subjected to special taxes. At least two forms of taxation are mentioned: the jizyah (special poll tax) and the kharaj (land tax); there were also other forms of taxes that were arbitrarily imposed on non-Muslims (M. Zand). Conversion of Jews and Christians (even Zoroastrians) increased in the Islamic period. 151 Yet, all sources indicate an increased severity and mistreatment of religious minorities beginning with the Safavi era and its version of Shi’ism. 152

¹⁴⁵ Quoting from a paper by RS Kramer, ‘Th e Death of Basiyouni: A Meditation on Race, Religion, and Identity in the Sudan’, which was presented to the 15th Annual Meeting of the Sudan Studies Association, May 1996, Alexandria, Virginia. Warburg states that: ‘In 1986, the few remaining Jews in Khartoum sold the synagogue to a commercial bank, and it was replaced by an offi ce building.’ See G Warburg, ‘Notes on the Jewish community in Sudan in the Nineteenth and Twentieth centuries’ (2001) 24 Bulletin of the Academic Center in Cairo 22–6, 26. ¹⁴⁶ Ibid. ¹⁴⁷ United States Department of State, Annual Report on International Religious Freedom—Sudan

(15 September 2006). ¹⁴⁸ Ibid. ¹⁴⁹ Th is included the payment of taxes and the application of laws of apostasy. ¹⁵⁰ Th ey argue that this is somewhat borne out by the higher level of conversions of Jews to Islam

during this period. ¹⁵¹ Sanasarian notes, however, that: ‘Th e cases of Jewish conversions show that whenever it was

possible, they would pay large sums of money and thus be allowed either to maintain their faith or to return to Judaism. It also shows the presence of another pattern, namely pretending to convert but secretly resisting . . . Yet, they secretly remained Jews and married only amongst each other; after World War II, their descendants returned openly to Judaism, moving to Tehran or emigrating to the West and Israel.’ See E Sanasarian, ‘Babi-Bahais, Christians, and Jews in Iran’ (1998) 31(3/4) Iranian Studies , A Review of the “Encyclopaedia Iranica’ 615–624. ¹⁵² Ibid.

Minority Identities in the Middle East: Religious Minorities102

During the period that followed under Afghan and subsequently Zands rule, the situation for Jews improved; however, this changed under the Qajars (1796–1925) when, despite their dhimmi status, a number of social and eco- nomic restrictions were placed on them. 153 Th is improved in the late nineteenth century with the intervention of European Jews who set up schools under the Alliance Fran ç aise Universelle in large Jewish communities. In an eff ort by local politicians to infl uence European governments just before World War I, there were anti-Jewish pogroms in F ā rs Province. Th e situation for the Jews under the Pahlavis dynasty was mixed (1925–79). Although Jews were able to participate in socio-economic and decision-making institutions, and most of the previous discriminatory legislation was removed, 154 during Reza Shah’s rule 155 ‘pro-Nazi sympathies seriously threatened Iranian Jewry’. 156 But, as Sanasarian notes, the anti-Jewish sentiments at that time had a distinctly European character, narrated in ‘ethnonational’ rather than religious terms. 157 Under the second period of Pahlavis rule, a policy of forced secularization followed, under a state-sponsored programme of nationalism, which:

. . . promoted homogenization; religious minorities were to join ‘the national mainstream’. Diff erences were theoretically nonexistent or of minimum importance; everyone was equal before the law; everyone was welcome into any profession. Th e sameness of all citizens was reiterated, and every ethnic and religious minority was referred to as Irani fi rst and foremost. 158

Th e regime that followed after the 1979 Revolution ushered in ‘a wide and system- atic scale of legally institutionalized discrimination and segregation’ 159 of religious minorities. Th is happened despite the constraint of dhimmi rules that shaped the theocracy–minority relations. Th e drafting of the Iranian Constitution engaged representatives from the four recognized religious minorities in Iran—Jewish, Armenian, Assyrian/Chaldean, and Zoroastrian. Th e vigorous exchanges that took place during the early period resulted in a fi rst draft that was ‘far more democratic than the fi nal constitution’, which in large part was redrafted by ‘cler- ics who controlled the revisions and create[d] a less democratic constitution’. 160

¹⁵³ Jews were required to wear a specifi c form of dress to distinguish themselves as Jews. Th ey were prohibited from having contact with Muslims—either directly or indirectly (food preparation, sitting on the same carpet). Certain occupations, such as agriculture, were not open to Jews. As well: ‘during the Qajar era in 1839 Muslims invaded the Jewish quarter in Mashhad, killing many and ordering the survivors to convert or be killed. Most converted, taking Muslim names, attending Qur’an reading classes and mosques, and even making pilgrimage to Mecca and the sacred Shi’ite shrines in Iraq.’ See Sanasarian (n 151). ¹⁵⁴ Some authors note, however, that the social practices within civil society continued. ¹⁵⁵ Reza Shah’s reign was 1925–41. ¹⁵⁶ E Sanasarian, Religious Minorities in Iran (Cambridge University Press 2000) 46. ¹⁵⁷ Ibid. ¹⁵⁸ Ibid 56. ¹⁵⁹ Ibid 24. ¹⁶⁰ NR Keddie, Modern Iran: Roots and Results of Revolution (Yale University Press 2006) 247. Under

the Constitution, Jews (as well as Armenian, Assyrian, and Zoroastrian) are offi cially recognized and

1 Non-Muslim Religious Minorities 103

By the autumn of 1980 ‘Khomeinists controlled all institutions except the presi- dency and some cabinet positions’, 161 and, in their ascent to power, by 1981, they had crushed all political opposition groups and imposed total political control. Whatever opening for discussion existed in 1978–79, by 1981, mainstream reli- gious minorities were forced to maintain boundaries of what would be acceptable under the dhimmi discourse.

Th e changes to the political landscape in post-revolutionary Iran triggered large-scale Jewish emigration. In 1979, Jewish presence was estimated at 80,000– 100,000, concentrated largely in Tehran, followed by Shiraz and Esfahan, while it is now estimated at 25,000–30,000. 162 Recent reports indicate that the gov- ernment engages in ‘systematic, ongoing, and egregious violations of religious freedom’ 163 with such discrimination increasing following the disputed 2009 election, 164 reaching levels unprecedented since the 1979 Revolution. Th ese trends have also aff ected other offi cially recognized non-Muslim religious minorities protected under the Constitution, namely Armenians, Assyrian Christians, and Zoroastrians. 165 Discrimination is reported in education, access to government jobs and services, and the armed services. 166 In addition, Jewish private schools are administered by the Ministry of Education, which imposes a state-approved religious curriculum. 167 Religious education for Jewish religious children is becoming increasingly diffi cult, with offi cial discouragement of the distribution of Hebrew literature heightened by anti-Semitism and Holocaust denials by sen- ior government offi cials. 168 A 2011 report by Amnesty International reported,

protected minorities. Th ey are permitted to worship freely and have autonomy over issues concerning personal status, ie marriage, divorce, and inheritance. Five seats in the 290 Majlis are reserved for rec- ognized religious minorities, two for Armenian Christians, one for Assyrian Christians, and one each for Jews and Zoroastrians. Whilst these provisions suggest some degree of protection and representa- tion for the country’s four recognized minorities, as we note, the practice is much more complicated. ¹⁶¹ Ibid 252. ¹⁶² Th e fi gure is an estimate only; there is no offi cial census on religious minorities and fi gures do vary

depending on source. We have drawn this fi gure from the more recent United States Commission on International Religious Freedom’s report. See, United States Commission on International Religious Freedom, Annual Report 2011 (May 2011) 81. ¹⁶³ United States Commission on International Religious Freedom, Annual Report 2011—Countries

of Particular Concern: Iran (28 April 2011). ¹⁶⁴ Th e Human Rights Council noted, under Iran’s UPR, that during the tenth presidential election

in 2009, ‘political activists, members of the country’s religious and ethnic minority communities, students, trade unionists and women’s rights activists were harassed and arbitrarily detained’. UN Human Rights Committee (HRC), Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee—Islamic Republic of Iran (29 November 2011) CCPR/C/IRN/CO/3, para 29. ¹⁶⁵ See, Human Rights Watch, World Report 2012—Iran (22 January 2012); Minority Rights Group

International, State of the World’s Minorities and Indigenous Peoples—Iran (6 July 2011); Amnesty International, Annual Report 2011—Iran (13 May 2011). ¹⁶⁶ Committee on the Elimination of Racial Discrimination (CERD), Consideration of Reports

Submitted by States Parties under Article 9 of the Convention: Concluding Observations of the Human Rights Committee—Islamic Republic of Iran (27 August 2011) CERD/C/IRN/CO/18–19, para 16. ¹⁶⁷ United States Commission on International Religious Freedom (n 162) 81. ¹⁶⁸ Ibid 74.

Minority Identities in the Middle East: Religious Minorities104

‘[m]embers of religious minorities, including Christian converts, Sunni Muslims, dissident Shi’a clerics, and the Ahl-e Haq and Dervish communities, continued to suff er discrimination, harassment, arbitrary detention, and attacks on com- munity property’. 169

Th e USCIRF Annual Report for 2011 listed Iran as a country of particular con- cern. In broad terms, it noted that ‘[t]he government of Iran continues to engage in systematic, ongoing, and egregious violations of religious freedom, including prolonged detention, torture, and executions based primarily or entirely upon the religion of the accused’. 170 With specifi c reference to Iran’s Jewish community, it notes that they experienced ‘increasing discrimination and repression’ and ‘offi - cial policies promoting anti-Semitism have risen sharply in Iran, and members of the Jewish community have been targeted on the basis of real or perceived “ties to Israel”’. 171

Jews sought sanctuary in Afghanistan in the early 1900s, 172 when fl eeing sec- tarian violence in Persia. An ethnographic study of Jews in Afghanistan published in 1942 suggests that, ‘[d]espite the larger estimates given by some writers the Jews number no more than 3,300’. 173 Th e study also noted that despite earlier publications which suggested that ‘the Jews have no synagogues because the Sunnite Islamic law will not tolerate a house of worship of another religion’ 174 there were eight synagogues identifi ed in Herat. However, it was noted that ‘[t]hese buildings were . . . not more than a century old’. 175 By the 1930s, Soviet Jews fl eeing pogroms began arriving, with a signifi cant impact on Afghani Jews. Th e government viewed the new arrivals with suspicion and worried that their presence would destabilize the country. It adopted discriminatory policies that did not distinguish between new immigrants and Afghani Jews. As Koplik argues: ‘Muslim residents and offi cials came to view both Jewish refugees and their own Jewish citizens in an increasingly similar manner. As the plights of these two com- munities worsened, their fates were joined.’ 176

Many Jews were expelled ‘from [the] northern rim of Afghanistan’. 177 However, as Koplik notes, ‘[f ]ew contemporaries were able to explain why Afghan Jews and their fate were so inextricably linked to the refugees’, although, it may have been linked with fears that the presence of the Bukharan Jewish refugees ‘raised the spectre of a confl ict with the Soviet Union over the border’. 178 Th e British

¹⁶⁹ Amnesty International (n 165). ¹⁷⁰ United States Commission on International Religious Freedom (n 162) 74. ¹⁷¹ Ibid 81. ¹⁷² However, a Jewish presence has been noted since the mid-1850s. ¹⁷³ E Brauer, ‘Th e Jews of Afghanistan: An Anthropological Report’ (1942) 4(2) Jewish Social

Studies 121–38, 122. Koplik puts this fi gure at 5,000: S Koplik, ‘Th e Demise of Afghanistan’s Jewish Community and the Soviet Refugee Crisis (1932–1936)’ (2003) 36(3) Iranian Studies 353–79, 353. ¹⁷⁴ Brauer (n 173) 135. ¹⁷⁵ Ibid. ¹⁷⁶ S Koplik (n 173) 354–5 (internal citations omitted). ¹⁷⁷ Th e reporting from both Brauer and Koplik on these events is consistent. ¹⁷⁸ Koplik (n 173) 371.

1 Non-Muslim Religious Minorities 105

intervened in 1934 to prevent the government from deporting Bukharan and Afghani Jews, though this can be attributed more to Britain’s shared suspicion of the new immigrants as a potential source of Bolshevism who needed to be kept away from India rather than to any altruistic or humanitarian concerns. 179 Repressive state measures imposed included internal travel bans and the revo- cation of citizenship for Afghani Jews living abroad. Th ese measures led to a signifi cant decline in the Jewish population with many Afghans prohibited from emigration 180 fl eeing over the borders in an attempt to reach Palestine. Th is fl ow gathered strength following the establishment of Israel in 1948. Th e 50,000 or so who remained post-1948 were economically successful and relatively well respected, even in the 1960s, at the height of the Arab–Israeli confl ict.

Th ere has never been a governmental campaign in Afghanistan to convert Jews to Islam. 181 Also, unlike other countries in the broader region, its govern- ment was secular until the late 1970s. However, unlike other secular Middle Eastern countries, ‘the separation of mosque and state was the result of social and cultural development, not government-enforced measures’. 182 In the pre-1979 Constitution, religious freedom was protected. Under Article II, non-Muslims were guaranteed freedom of worship and were able to practise their religion freely. Th ey had access to higher education, public health facilities, and were permitted to serve in the armed forces and other public sector positions. After the 1978 communist coup and the 1979 Soviet invasion, the Afghan Communist Party backed by its Soviet supporters adopted a secularist ideology in an attempt to mobilize Afghan society, 183 leading to a power struggle between the progres- sive movement, Islamists, and Afghan and Soviet communist forces. Th ough non-Muslims were active in the struggle against the invasion, they were viewed as threats and faced constant harassment from Islamists. 184 Th e struggle and even- tual power vacuum allowed the Taliban to take power in 1996 and, under its rule, religious minorities suff ered severe discrimination. 185

Th e Jewish community declined rapidly after 1979 and, today, only one Jew remains in Afghanistan, Zebolan Simintov, the caretaker of Kabul’s synagogue,

¹⁷⁹ Ibid 372–9. ¹⁸⁰ Th is ban was lifted in October 1950. ¹⁸¹ N Nojumi, ‘Reconstruction and Religious Freedom in the New Afghanistan’ (2003) 1(1) Th e

Brandywine Review of Faith & International Aff airs 31–8, 33 (internal citations omitted). ¹⁸² Ibid 34. ¹⁸³ A Hyman, ‘Nationalism in Afghanistan’ (2002) 34(2) International Journal of Middle East Studies

Special Issue: Nationalism and the Colonial Legacy in the Middle East and Central Asia 299, 310. ¹⁸⁴ Ibid 311. ¹⁸⁵ For an ethnographic study that refl ects on this time period see, Afghanistan Research and

Evaluation Unit (AREU), Legacies of Confl ict: Healing Complexes and Moving Forwards in Bamiyan Province (October 2011) 18–23. See also human rights reporting during the Taliban rule in Afghanistan including: International Federation for Human Rights, Afghan Women under Taliban Repression (15 December 1998); Amnesty International, Afghanistan: Th e Human Rights of Minorities (1 November 1999) AI Index: ASA 11/014/1999.

Minority Identities in the Middle East: Religious Minorities106

one of two synagogues left in Afghanistan. 186 Renovation of this synagogue began following the fall of the Taliban in 2001. 187

In December 2001, the Afghanistan Independent Human Rights Commission was established pursuant to the Bonn Agreement as an independent body, with powers to promote, monitor, and improve human rights and to investigate alle- gations of human rights abuses. 188 A new Constitution was introduced in 2004 which, in its preamble, states commitment towards the ‘creation of a civil society free of oppression, atrocity, discrimination, and violence and based on the rule of law, social justice, protection of human rights, and dignity, and ensuring the fun- damental rights and freedoms of the people’. 189 It also provides religious minori- ties with freedom to ‘exercise their faith and perform their religious rites within the limits of the provisions of the law’. 190 Monitoring groups report, however, that the political instability in Afghanistan, combined with weak democratic institutions have severely impacted the ability of the government to realize these commitments, 191 leaving the country’s minority communities and civil society, in general, vulnerable. 192

1.2 Christians in the Middle East

Any survey of literature examining conditions under which Christians lived in pre-modern Islamic societies is likely to unearth contested and divided terrain. Reading history backwards is, as noted earlier, part of a political project, cre- ating rather than revealing the past to serve particular political and ideologi- cal interests of the present. Th is has had a particular infl uence on the historical writings related to Christians in the Middle East. Th ere is comparatively little scholarship focussing on Christians in the Ottoman Arab provinces of Syria and Egypt. Whether this was a conscious decision amongst scholars to follow the Arab nationalist paradigm is open to question but it suggests the possibility of

¹⁸⁶ Th e other synagogue is located in Herat and both are well preserved. See Nojumi (n 181) 33–4. Th ere was another Jew, the elderly Ishaq Levin, living in the same synagogue until his death in January 2005. Oddly, Simintov and Levin were bitter rivals. See NC Aizenman, ‘Afghan Jew becomes coun- try’s one and only: a single death in Kabul cuts community in half ’, Th e Washington Post (27 January 2005). ¹⁸⁷ N Krastev, ‘U.S.: Afghan Jews keep traditions alive far from home’, Radio Free Europe/Radio

Liberty (19 June 2007): <http://www.rferl.org/content/article/1077209.html> accessed 14 March 2012. ¹⁸⁸ No 3471 (Law on the Structure, Duties and Mandate of the AIHRC) Date: 24/02/1384 (14

May 2005), Article 5. ¹⁸⁹ Ibid, Preamble, 8. ¹⁹⁰ Ibid, Chapter 1, Article 2. ¹⁹¹ For an overview of the sociopolitical conditions in Afghanistan post-2001, see, A Giustozzi

and N Ibrahimi, Drivers of Anti-Government Mobilisation in Afghanistan, 1978–2011 (Afghanistan Research and Evaluation Unit January 2012). ¹⁹² A report by the United Nations Assistance Mission in Afghanistan (UNAMA) noted that: ‘Th e

mounting toll of civilian casualties in the fi rst six months of 2011 represents a deepening entrench- ment of violence in the everyday lives of Afghans.’ See, UNAMA, Afghanistan, Mid Year Report, Protection of Civilians in Afghanistan (July 2011) 4.

http://www.rferl.org/content/article/1077209.html

1 Non-Muslim Religious Minorities 107

a political decision by scholars to avoid being grafted onto particular reading of confessional relations.

Th is concern may underpin why much of the literature ‘side-steps’ the ques- tion of religious communities in the Ottoman Empire. Th ere are, of course, notable exceptions that endeavour to detail endogenous and exogenous factors which infl uence how identities of non-Muslims evolved in Islamic societies, rais- ing interesting questions about how the roots of sectarianism may be understood. Bayly’s work, focussed on Mughal India, questioned whether there was a ‘sectarian consciousness’ within civil society, a sense of having a social identity at least partly framed by religious practices, or whether this was a modern construct applied to pre-modern India. 193 Masters’ thesis suggests that such a sectarian consciousness existed in the ‘Arab Middle East’, where Islam existed for ‘a thousand years before the Ottomans arrived’. 194 Since Christians and Jews lived as minorities during this period, he argues religion would have been a salient identity marker at that time, and would have demarcated inclusion and exclusion from sites of power in Ottoman lands. Th is was evident in customs and laws and, he argues, would have had a strong infl uence on individuals’ world view; religion would not have been about just faith, but served as an identity marker with an ‘inherently political dimension in Ottoman society’. 195

Th e more contested terrain lies beyond a description of this hierarchy in an examination of just how non-Muslim ‘minorities’ living in Islamic societies were treated during Ottoman times. Aside from competing narratives on minority relations at the time, historians who examined relations between religious groups were faced with incomplete historical records. Th e records of qadi courts, for example, were incomplete and often short and testimony was not recorded ver- batim. More problematically, cases involving non-Muslims often did not come to court as, wherever a penalty might have resulted, the testimony of non-Muslims against Muslims was not valid. Th e historical facts and gaps have not prevented writers from attempting to provide often contrasting narratives either glorifying or condemning minority–majority relations. Leaving aside vested narratives, what is likely to be closer to the ‘truth’ is that the experience of religious minorities dur- ing this time was not uniform and would often diff er depending on location. 196

By the eighteenth century, the hierarchical relationship between majority–minority that existed during the early Ottoman period was disrupted as European merchants impacted local economies and changed ‘the social and economic hierarchies governing Christian–Muslim relations’. 197 Th at Europeans were Christian infl uenced how Muslims would come to view their Christian

¹⁹³ CA Bayly, ‘Th e Pre-history of “Communalism”? Religious Confl ict in India, 1700–1860’ (1985) 19 Modern Asian Studies 177–203. ¹⁹⁴ Masters (n 19) 5. ¹⁹⁵ Ibid. ¹⁹⁶ Ibid 18. ¹⁹⁷ Ibid 7.

Minority Identities in the Middle East: Religious Minorities108

neighbours. Th e rate at which the diff erent religious communities embraced changes attendant to European intervention in the Ottoman Empire diff ered, creating an ‘imbalance’ that later sowed ‘seeds of social disruption’. 198

1.2.1 Overview Christians reside in a majority of the 24 states examined, and include Greek Orthodox, Greek Catholic, Copts, Latins and Protestants, Palestinians Christians living in Israel and the Occupied Territories, and Palestinian refugees living in one of the adjoining states. Th e Christian populations in the region also include migrant workers or illegal immigrants (a signifi cant percentage of whom are Christian) that may have travelled to these states, particularly in the oil-produc- ing regions, for employment.

Christians comprise approximately 10 per cent of the population in Syria. Th e oldest and most established community is the Greek Orthodox Church (503,000 members), which has a patriarchal see in Damascus and dioceses in Damascus, Latakiya, Aleppo, Homs, Hama, and the Hauran. Th e Greek Catholic Church (118,000 adherents), separated from the Orthodox Church in the eighteenth cen- tury, has fi ve dioceses in Aleppo, Latakiya, Homs-Hama-Yabrud, Bosra-Hauran, and Damascus. Th e communities are concentrated in and around Damascus, Latakiya, and the neighbouring coastal region. 199 Th ere are a number of other Christian communities who fl ed to Syria; many escaped the violence and depor- tations in Turkey after World War I or fl ed following events in Northern Iraq in 1933. Th ese include: Armenian Apostolic Orthodox (112,000), Armenian Catholics (25,000), 200 Syrian Orthodox (or Suryanis, 89,000), Syrian Catholics (estimated at 22,000), Assyrian Christians (17,000), and Chaldean Catholics (7,000). Smaller Christian communities in Syria include Maronites, originally from Syria who live in and around Aleppo, Latakiya, Tartus, and Damascus, and the Latins (11,000), mostly in Aleppo and Damascus, who depend on an apos- tolic vicar established in Aleppo. An apostolic nonce also resides in Damascus. Syria also has a community of Protestants and Anglicans. Th e Latin and Protestant churches are the result of missionary activity. Anglicans are mainly refugees who left Palestine after the establishment of Israel in 1948. Th ey remain under the authority of an Anglican bishop of Palestinian origin.

Th e Orthodox Christian community and Arab Christians are well integrated into Syrian civil society, and do not identify with the West. Historically, Orthodox Christians, led by an Arab Patriarch since 1898, have been active in Arab nation- alist movements. Similarly, when a split occurred within the Christian Orthodox

¹⁹⁸ Ibid. ¹⁹⁹ Th e use of the term ‘Greek’ does not signal an ethnic identity but rather that religious celebra-

tions adhere to Greek/Byzantine rites. ²⁰⁰ Th e Armenian Catholics live primarily in Aleppo but smaller communities can be found in

Damascus and in the Jazira in the North East.

1 Non-Muslim Religious Minorities 109

community, the newly formed Greek Catholic Church also appointed an Arab Patriarch. Th e current Patriarch of the worldwide Greek Catholic Church is based in Damascus.

Syrian Orthodox Christians (Suryani) 201 or Jacobite(s) are named after the sixth- century Monophysite Christian bishop, Yacoub Burd’ono or Jacob Baradaeus of Urfa/Osrohene/Edessa, specifi cally those whose ancestry stems from the Tur Abdin region of Turkey, Diyarbekir, Mardin, Urfa, and Harput/Elazig. 202 Suryanis were ‘Monophysite Christians and the ideological heirs to the bitter theological battles waged within Christendom in the fi fth century AD to defi ne the nature of Christ. Th e Monophysites, who chose to emphasize Christ’s divine nature at the expense of his human one, lost the theological battle.’ 203 Th eir persecution at the hands of Roman authorities found relief with the Muslim Arab conquest. However, their fate subsequently became intertwined with the Armenian com- munity, since they shared the northern part of the border regions of Turkey, Syria, and Iraq. When Turkish authorities began deporting Armenians from Diyarbak ı r in the spring of 1915, Suryanis were deported as well, though never subject to deportation orders. During this period, the Ottoman army indiscriminately killed thousands of Armenians and Suryanis, including most of the Christian population of the province. 204 Today Suryanis are divided amongst those who identify as Arab, living in the Homs area with long lineage to the territory, and those descended from the highlands of Southeast Turkey who do not identify as Arabs. Within this second group, there remains a division between those who regard themselves as ‘Aramaean’ and others who identify as ‘Assyrian’. 205 Th e Assyrians are a people of ancient Mesopotamia, 206 and Aramaeans are those who converted from Ashurism to Eastern Christianity. Assyrians have a distinct identity; they are Christian and Semitic, but distinguish themselves from Arab Christians, a term that Arab nationalists endeavoured to apply to suggest that there is no distinct Assyrian identity. Th eir ancestral homeland includes parts of Iran, Iraq, Syria, and Turkey and communities currently live in Syria, Lebanon, Turkey, Iran, Russia, Armenia, and North America. 207 Th e Assyrians use classical Syriac derived from Aramaic, the language of Christ. In fact, in the absence of a collective Assyrian national identity, something that would not be crafted by the

²⁰¹ Th is term is not universally embraced, particularly amongst Diaspora groups, some of whom prefer Assyrian. In Syria, however, this debate is given less relevance. ²⁰² For a detailed discussion on the history of the Suryani community, see, S Donabed and S Mako,

‘Ethno-cultural and religious identity of Syrian orthodox Christians’ (1 September 2009) Social Science Research Network . ²⁰³ Masters (n 19) 45. ²⁰⁴ Estimates are that during this period up to 140,000 Christians were killed. ²⁰⁵ Th is division is refl ected in the Diaspora community as well. ²⁰⁶ References to Assyrians as ‘Syrians’ or as a Nestorian millet can be found in early texts. ²⁰⁷ Th ere are an estimated 400,000 Assyrians living in North America, primarily in Detroit,

Phoenix, San Jose in the United States, and Toronto and Windsor in Canada.

Minority Identities in the Middle East: Religious Minorities110

Assyrian intelligentsia until the early twentieth century, Syriac Christianity was the sole unifying force amongst the Assyrian community.

Constructing a distinctly Assyrian national identity has proved diffi cult. Most Assyrians are affi liated to one of four churches: the Syrian Orthodox Church, the Syrian Catholic Church, the Chaldean Uniate (Catholic), and the Assyrian Church of the East (Nestorian). 208 In 1551, the Assyrian Church divided with some of its members, adopting Catholicism. Th ese Catholic Assyrians are some- times referred to as Assyro-Chaldeans or Chaldeans. Th is schism, combined with strong tribal and class divisions amongst Assyrians, fragmented the community, and, while some of these factors are no longer relevant, the divisions, particularly between the Chaldean and Nestorian, remain.

Assyrians articulate their identity as distinctly non-Arab. Th e advent of nation- alism in the region, particularly the 1909 Young Turk movement, left an indelible and violent imprint on the Assyrian population. Estimates suggest that up to two-thirds of the Assyrians that lived in what is now south-eastern Turkey and northern Iran were killed; many fl ed to modern Lebanon and settled around Zahle and in Kurdish and Turkoman populated areas in northern Iraq. Th is was followed by another wave of refugees from Iran to northern Iraq in 1918, which signifi cantly impacted the demographics of this region. After the events of 1933 in Iraq, examined in Chapter 3, many Assyrians fl ed and settled in the Khabur valley, then under French control, which became part of Syria in 1942.

Th e many divisions within the Christian community in Syria are deeply prob- lematic for church authorities, who believe that the relatively secure position within Syria:

. . . depends on them upholding a policy of Arab solidarity and a pan-religious Syrian national identity in order that they are not viewed as a destabilising infl uence on society . . . . Th is creates a confusing juxtaposition in which many Syrian Orthodox support the ruling Ba ‛ th Party, believing that the Party is the balance that keeps Syria stable, whilst at the same time railing against corruption in the system and the unstable economic situa- tion. Th e symbiotic relationship between the Syrian Ba ‛ th Party and religious minorities in the country means that neither side can achieve stability without the other and gives Syrian Christians a great deal more power and infl uence (known in Arabic as wasta ) than in any other country in the region, save for Lebanon. 209

We detail the historical formation of the Syrian state, and the political struggles that engage minorities, in Chapter 5, so our review here will be brief. Notwithstanding current uncertainties, the relationship of Christians to the Syrian state is generally characterized as tolerant. Th e vested interest of the cur- rent Asad regime in maintaining a Christian alliance has, in large part, contrib- uted to a symbiotic relationship. Although there has been emigration amongst

²⁰⁸ Most Iraqi Assyrians are members of the latter two—the Chaldean and the Nestorian. ²⁰⁹ E Loosley, ‘After the Ottomans: Th e Renewal of the Syrian Orthodox Church in the Twentieth

and Twenty-First Centuries’ (2009) 15(3) Studies In World Christianity 236–47, 238.

1 Non-Muslim Religious Minorities 111

Syria’s Christians, with some exceptions, 210 this is attributed to economic or repressive measures shared with other parts of Syrian society. Th ere is a separ- ate provision in state schools for religious education and state holidays, includ- ing Western Christmas as well as Orthodox and Western Easter. As well, the Churches (Orthodox and Catholic) are given some discretion in the legal system in matters related to personal status, which are applied by community specifi c tri- bunals. Although the state requires citizens to affi liate with Christianity, Judaism, or Islam—an affi liation noted on the birth certifi cate and on legal documenta- tion when getting married or travelling for a religious pilgrimage—religion is not noted on identity cards. All religious institutions (i.e. Muslim, Christian, or Jewish) recognized by the state are tax exempt, as are the personal property or vehicles owned by their clergy.

For the ethnic Armenian population of Syria, the situation has shifted with the changing political landscape. Th e Armenian community has generally been able to maintain a degree of autonomy, and it benefi ts from provisions allowing qua- si-private institutions and clubs, especially amongst non-Muslim minorities. So while the Tachnag and Hentchak, Armenian political parties, do not exist in Syria as formal political parties, 211 they exist as ‘cultural associations’, with schools his- torically associated with them, the most prominent being the Armenian General Benevolent Union school in Aleppo. In education, in particular, ‘the government has consistently sought to minimise interference with the Armenian schools and appears to regard benignly a certain liberal interpretation of rules. As far as the curriculum is concerned, Armenian teachers have been allowed more fl exibility in the time they could allocate to the teaching of Armenian language.’ 212 Th is practice is consistent with the state’s relations with other Christians, in that group activities are allowed, as long as what they do in Arabic is consistent with Ba ‛ thist ideology.

Although there is no offi cial state religion in the Syrian Constitution 213 and freedom of religion is ostensibly protected, there are some limitations. Article 3 of the Constitution requires that the President is Muslim, 214 and Article 3/2 identifi es Shar î’ ah as the principal source of all legislation. Limits on the right of religious freedom are also recognized in statutes, mainly around the issue of

²¹⁰ Pressures specifi c to the Christian community may exist in the Djezirah province, where Syrian Orthodox and Catholic along with some Assyrians and Chaldeans live. Quite aside from the drought that has impacted all communities in this area, there are two other factors. First, there is reported to be an increase of Kurds in the region, sparking fears that this will change the religious complexion of the region (with fears that some Kurds are moving towards ‘Islamism’). Secondly, there is the depopu- lation of Christians in Turkey just over the border in the area of Mardin-Tur ‘Abdin, which began in the 1960s and accelerated in the 1980s. ²¹¹ In Lebanon, the Taschnag exist as a political party and form alliances with Hezbollah. ²¹² N Migliorino, ‘“Kulna Suriyyin”? Th e Armenian Community and the State in Contemporary

Syria’ (2006) (2006) 115–16 Remmm , 97–115, 110. ²¹³ Th is is unique in the Arab world; the only other state that has not enshrined Islam as the religion

of the state is Lebanon. ²¹⁴ Th is was put in place in 1973.

Minority Identities in the Middle East: Religious Minorities112

conversion. Marriage between non-Muslim men and Muslim women is pro- hibited; while a Muslim can convert, his new religious status is not recognized. Although proselytization is not prohibited; it is discouraged and occasionally penalized under a law that prohibits ‘posing a threat to the relations among reli- gious groups’. 215 All religions and religious orders must register with the gov- ernment, which monitors fundraising and requires permits for all religious and non-religious group meetings except for worship. 216

Th e violent repression of protests and demands for a regime change create great uncertainties for Ba ‛ thist rule at the time of writing. Under Asad, the enforced secular nature of the state was essential to its own survival; one dependent on the support of other minorities, including the Christian community, to govern the country’s majority Sunni population, which constitutes 70 per cent of the population.

Th e Christian community in Jordan has been estimated at between 3 and 6 per cent of the total population. 217 Among the Christian denominations are Greek Orthodox (the largest denomination), Roman Catholic, Greek Catholic (Melkite), Armenian Orthodox, Maronite Catholic, Assyrian, Coptic, Anglican, Lutheran, Seventh-day Adventist, and Presbyterian churches, along with signifi - cant refugee communities of Chaldean and Syriac Christians who fl ed Iraq in 2003. 218 A majority of the Christian population in Jordan is Palestinian. As the Palestinian refugee population extends over a number of borders in the Middle East, we examine this community separately in Chapter 3, section 1.

Jordan’s engagement with its Christian minority has been described as ‘over- whelmingly tolerant’ 219 and relations between Christians and Muslims have been described as ‘good’. Th e Constitution protects freedom of religion with some lim- itations. Discrimination based on religion is prohibited but Islam is identifi ed as the state religion and the King is required to be Muslim. 220 Recognized Christian denominations and other non-Muslims exercise jurisdiction over matters con- cerning personal laws through specifi c Tribunals of Religious Communities. 221 However, Muslim converts to Christianity, or other religions, are denied access to

²¹⁵ United States Department of State, July–December, 2010 International Religious Freedom Report—Syria , 13 September 2011. ²¹⁶ Th is information was obtained from a number of sources, which were (to the extent possi-

ble) cross-checked. Th ese include, United States Department of State, 2010 International Religious Freedom Report, Syria (13 September 2011) 4. ²¹⁷ Th ese fi gures do vary. Th e United States’ 2010 Report on Religious Freedom places the number at

the lower end suggesting a fi gure of between 1.5 and 3 per cent of the population whilst the Minority Rights Group International places the fi gure closer to 6 per cent. ²¹⁸ Of those registered with the UN High Commissioner for Refugees (UNHCR), as of October

2011, 10 per cent of the 33,753 refugees were Christian. See UN High Commissioner for Refugees, Statistical Report on UNHCR Registered Iraqis and Non-Iraqis (30 September 2011). ²¹⁹ Minority Rights Group International, World Directory of Minorities and Indigenous Peoples—

Jordan: Christians (2008). ²²⁰ Article 28(e) Constitution of Jordan, adopted 1952. ²²¹ Th is includes religion, marriage, divorce, child custody, and inheritance.

1 Non-Muslim Religious Minorities 113

these Tribunals and remain, in the eyes of the state, subject to Shar î’ ah . Although religious conversion is not prohibited under the Constitution, civil law, or in the penal code, it is indirectly prohibited as converts are considered apostates under Islamic law and can be subjected to an apostasy complaint, which can be fi led by any member of society. Islamic religious education is provided in state schools but non-Muslims are exempt from these classes. Th e Constitution facilitates the establishment of private religious schools for non-Muslims, ‘provided . . . they comply with the general provisions of the law and are subject to the control of government in matters relating to their curricula and orientation’. 222

Th e 1952 Constitution designated nine seats out of 110 in the Chamber of Deputies for Christians—a slightly higher proportion of representation than for other minority groups. In 2010, six Christians were appointed to the Upper House of Parliament. Christians have served as Cabinet Ministers and the gov- ernment has previously reserved a certain percentage of places in the military’s senior ranks for Christians.

Iran’s Christian population, estimated at one per cent of the total population, comprises ethnic (Armenian, 223 Assyrian, and Chaldean 224 ) and non-ethnically identifi able communities (Protestants and Evangelicals). Iran’s relationship with its minority communities is intrinsically complicated. Th e state confers a limited set of rights on minority communities but the degree and extent depend on the group in question and the threat that particular group may pose to state author- ity. Sanasarian suggests that the state’s relationship with its minority communi- ties can be understood through Esman’s formulation of state elite engagement with minority groups. Esman identifi ed several frameworks that capture state elite behaviour in diff erent countries towards ethnic diversity and the minority question. 225 Sanasarian argues that Iran falls closest to Esman’s second model wherein the state ‘generally off ers the minority some rights, although they are inferior to the rights enjoyed by members of the dominant community’. 226 In this model, minorities may enjoy the ‘freedom of enterprise’ and, therefore, belong to a higher socio-economic stratum of society but, at the same time, are subject to ‘signifi cant state repression’. 227 Th e form and level of repression, in Iran, is thus linked to the degree of threat each minority community is perceived as posing to the regime, recalibrated depending on the political landscape. As Sanasarian has noted:

In contrast to the Pahlavi state, the clerical-led regime has shown acceptance of the per- manence of the pluralistic nature of society. It is accepted practice for parliamentary depu- ties to introduce their provincial/ethnic identity during their speeches on the fl oor. (Th is

²²² Constitution of Jordan, Article 19. ²²³ Estimates for the numbers of Armenians in Iran range between 150,000 and 200,000. ²²⁴ Figures for this population are dated but have been estimated at 40,000. ²²⁵ MJ Easman, Ethnic Politics (Cornell University Press 1994) 255–6. ²²⁶ Ibid 256. ²²⁷ Ibid.

Minority Identities in the Middle East: Religious Minorities114

would have been a betrayal of the ‘Iranianness’ of the state under the previous regime.) Yet . . . acceptance does not preclude the use or the threat of use of coercion. Th e policy concerning constitutionally recognized non-Muslim minorities has diff ered from those non-Muslims not recognised in the constitution. 228

Th e Constitution does specifi cally protect three groups—Christians, Jews, and Zoroastrians. Th ey are aff orded specifi c rights to assembly, to practise their reli- gion, and to vote for their deputies. 229 Under Article 64 of the Constitution, Zoroastrians and Jews have one representative each out of 290 in the Majlis (Islamic Consultative Assembly); Assyrian and Chaldean Christians have one designated representative between them, and Armenian Christians have two— from the North (Tehran) and South (Esfahan). Other relevant constitutional provisions are to be found under Article 19, which prohibits discrimination based on ethnic or tribal origin or colour, race, or language. 230 Th is ‘equality’ pro- vision notably excludes religion and gender as a ground. Article 15 is ostensibly a minority rights provision on language. While Persian is pronounced the offi cial language and script in Iran, ethnic minorities are allowed ‘the use of regional and tribal languages in the press and mass media, as well as for teaching of their literature in schools’. 231 Th e article makes no provision for any positive obliga- tion on the state to ensure that minority languages are preserved or to provide education in these languages. Th is is left to communities, many of whom run their own churches, schools, and associations and have their own publications. Th e Armenian community has been particularly active in these areas, whereas the Assyrian (Chaldean) community have some sports, cultural associations, and publications but have ‘face[d] the diffi culty of the continuance of Assyrian lan- guage and culture, since Assyrian schools had to teach children in Persian for all classes including those for religious education and even classes held for Assyrian children in the churches had to be examined in Persian’. 232

Although the relationship of the state to its minority communities, partic- ularly the Baha’i, is problematic, ‘religious minorities were mostly tolerated’ 233 in the period before the 1979 Revolution. Some religious minorities, notably Armenians and Jews, supported the Iranian revolution as part of the popular- ist anti-Shah movement. Th e Armenian community in particular was ‘the most politically integrated and active in Iranian revolutionary politics, since the dawn of the constitutional revolution early in the nineteenth century . . . as far back as the Safavid era’. 234 So, while some Armenians left after the 1979 Revolution, those

²²⁸ Sanasarian (n 151) 6. ²²⁹ Article, Constitution of the Islamic Republic of Iran, adopted 1979, amended 1989. ²³⁰ Ibid, Article 19. ²³¹ Ibid, Article 15. ²³² See Minority Right Group International, World Directory of Minorities Report, Iran: Christians

(2010). ²³³ H Dabashi, Iran: A People Interrupted (New Press 2007) 150. ²³⁴ Ibid.

1 Non-Muslim Religious Minorities 115

that stayed made signifi cant eff orts to maintain good relations with the govern- ment, on occasion, publicly supporting the regime in the wake of international criticism of its minority policies. 235 Th e 1979 Revolution changed the socio-legal and political landscape in Iran and the state-adopted repressive and hostile tones in its engagement with religious and ethnic minorities. Th ese changes aff ected ethno-religious groups across Iran, with even ‘protected groups’ under pressure. Communities outside this limited protection, e.g. Arabs, Azeris, Balochs, Kurds, Nematullahi Sufi Muslims, Sunnis, Baha’is, and some Christians, felt the sharp end of state policies. Th e degree to which these communities were viewed as ‘good’ citizens became key to their survival.

Converts to Christianity and Christian groups that engaged in public reli- gious expression or persuasion are subject to particularly repressive measures. Th is is especially true amongst the Protestant Evangelical community, many of whom are recent coverts. Distinct from recognized Christian denominations, Christian evangelicals conduct services in Persian, which state authorities view as an attempt to convert Muslims. Human Rights Watch reported that Protestant evangelical communities faced state repressive measures in the 1990s, including murders, disappearances, surveillance, church closures, the banning of Sermons in Farsi, and the prohibition of Muslims attending their services. Recent reports on the situation for minority groups indicate that the conditions for non-Muslim religious minorities has become increasingly precarious since the 2009 elections, and ‘virulent and infl ammatory statements by political and religious leaders and an increase in harassment and imprisonment of, and physical attacks against, these groups has led to a renewal of the kind of oppression seen in the years immediately following the Iranian revolution in the early 1980s’. 236

Th e pressure on Protestant congregations was noted in a 2011 report to the General Assembly by the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran. He states:

Th e Intelligence Ministry is reported to closely monitor Protestant congregations and to routinely summon or detain members of Protestant groups for interrogations, during which individuals are questioned about their beliefs, church activities and other church members and are often urged to return to Islam. In this regard, some Protestants reported having been threatened by intelligence offi cials with arrest and apostasy charges if they did not return to Islam. Th is pattern of harassment has reportedly resulted in the operations of most Protestant churches going underground, where church services and Bible studies are conducted in private homes. 237

What is important to note in this section, however, is that there is a great degree of fl uidity in the ruling elite’s engagement with its minority communities. Some

²³⁵ See Minority Right Group International (n 232). ²³⁶ United States Commission on International Religious Freedom, Annual Report 2011—Coun-

tries of Particular Concern: Iran (28 April 2011). ²³⁷ UN General Assembly, ‘Th e situation of human rights in the Islamic Republic of Iran: note by

the Secretary-General’ (23 September 2011) A/66/374.

Minority Identities in the Middle East: Religious Minorities116

of this can be attributed to an ‘Islamic’ prism–that is, the question of dhimmi status–but, as discussed earlier, Islamic law is often the surface over which politi- cal struggles are waged.

Sudan has endured protracted sectarian violence since independence, the roots of which lie in its colonial past of Turco–Egyptian and Anglo–Egyptian rule. Th e colonial divisions resulted in protracted civil war, which began shortly after independence in 1955, between the Northern-based Khartoum government and rebel movements in the south, ultimately culminating in the birth of South Sudan in 2011. Th e fi rst civil war ended in 1972 with the conclusion of the Addis Ababa Agreement, giving the south regional autonomy. Th is peace was disrupted in 1983 when President Ja’afar al-Numayri unilaterally abrogated the agreement and decreed Shar î’ ah law over the whole country. A second civil war began, which pitted the governments in the North against the rebel movement, Sudan People’s Liberation Movement/Army (SPLM/A), in the South.

Although sectarian entrepreneurs, including ruling elites from the National Congress Party (NCP), used religious rhetoric, including calls for jihad , to mobil- ize Muslims in the North against non-Muslims primarily living in the South and Muslims opposed to the governing NCP regime, the roots of the confl ict straddle several fault lines. First, there has been a legacy of political and economic mar- ginalization of populations of African descent as well as the neglect of popula- tions living in remote areas. Th e North extracted profi t from the oil-rich South without return investment. As well, Sudan’s ethno-religious divide is between the Muslim, Arab north and the predominately Christian, African south and west where Christian, traditional African faiths and people that mix elements of both belief systems dominate. Th e Arab elite in the North recognized that whilst a majority of Sudanese were Muslim, they were also African. Religion was key to mobilizing African Muslims to fi ght African Christians or believers of traditional religions, and the government narrated the confl ict in religious terms, instituting policies designed to create an identity for Sudan that was both Arab and governed by formulations of Islamic law, which were resisted by the mainly Christian south that preferred secular state arrangements. In January 2005, a Comprehensive Peace Agreement (CPA) was signed in Sudan, which terminated the 22-year civil war that had killed two million and displaced four million, mostly Christians from the South and those who followed traditional African religions.

Th e CPA began a peace process that culminated in the secession of South Sudan in July 2011. Th ere was anticipation within the international community that this secession would end decades of confl ict, though such optimism may be premature. Some parts of the CPA were implemented, both the 2010 elec- tions and the referendum on southern independence in January 2011. But many reforms intended to address the socio-economic inequalities in Sudan remain unimplemented and the redeployment of government forces from the oil-rich areas of the South was quite slow. Th e 2010 elections were deeply fl awed, with

1 Non-Muslim Religious Minorities 117

observers indicating that the elections were neither free nor fair. Unsurprisingly, then:

Sudan’s wars have not ended. Th ey have, in fact, multiplied. Five of Sudan’s 16 states are mired in armed confl icts. Since June, new confl icts have erupted in two volatile states— Southern Kordofan and Blue Nile—just north of the South Sudan border, while the three states in the western region of Darfur are still a war zone, although that confl ict has dropped from the headlines. Th ese confl icts are a stark reminder that the 2005 agreement failed to address the root causes of Sudan’s problems. 238

In Darfur the sectarian strategy of the government is evident. 239 Ethno-political divisions were cultivated by security forces that recruited from particular ethnic groups. Government forces directed attacks at those ethnic groups believed to support rebel factions and, similarly, communities seen as aligned with the gov- ernment faced retaliations by rebel forces, including the Sudan Liberation Army (SLA).

Th e Christian community in Sudan comprises approximately 5 per cent of the total population. Th ere are also communities of Sudanese that practise a mixture of Christianity and indigenous beliefs. Christians reside primarily in Southern Sudan and in the Nuba Mountains (in South Kordofan), but there are pockets of Christians in Northern Sudan, particularly in Khartoum. Christian denomin- ations in Sudan (North and South) include Orthodox Christians, including Coptic Orthodox, located primarily in Al Obeid, Atbara, Dongola, Khartoum, Omdurman, Port Sudan, and Wad Medani, and Greek Orthodox. Th ere are also smaller Christian communities drawn from the Africa Inland Church, Armenian (Apostolic) Church, Sudan Church of Christ, Sudan Interior Church, Jehovah’s Witnesses, Sudan Pentecostal Church, Sudan Evangelical Presbyterian Church (in the North), Presbyterian Church of the Sudan (in the South), and the Seventh-day Adventist Church of Sudan, as well as Ethiopian and Eritrean Orthodox communities in Khartoum and the East, largely made up of refugees and migrants.

In July 2011, Southern Sudan was recognized as the 193rd member of the United Nations. In October 2011, President Omar Al-Bashir stated that if Southern Sudan seceded (as it subsequently would) the North would implement a constitution that enshrined Shar î’ ah as the main source of Sudanese legislation.

²³⁸ Th is was based on fi eld work undertaken by Human Rights Watch, which was later published as an Op-Ed piece. See Jehanne Henry and Gerry Simpson, ‘In Sudan, peace remains elusive’ LA Times (25 October 2011). It is reported that the confl ict in South Kordofan has displaced or severely aff ected over 200,000 people. Figures from the UNHCR estimate that 27,000 Sudanese from Blue Nile have fl ed to Ethiopia and a further 19,500 have been internally displaced and are living among communi- ties along the border. See UN High Commissioner for Refugees, ‘UNHCR moves Sudanese refugees away from volatile border area’ (20 October 2011). ²³⁹ Th e confl ict in Darfur, in the northern region of Sudan, began in 2003. A separate peace pro cess

culminated in a 2006 Darfur Peace Agreement (DPA) but it was fl awed from the start, as it was signed by only one of the major rebel factions.

Minority Identities in the Middle East: Religious Minorities118

Under the 2005 interim national constitution (INC), 240 freedom of religion is protected, though, in practice, formulations of Islamic law were used as a source for the laws and policies of the Government of National Unity in the North (GoNU). Freedom of religion is included in the constitutional provisions for South Sudan.

A number of prohibitions and restrictions applied to Christians in the North during the civil war though these were not uniformly implemented. For example, conversion from Islam to another religion, deemed apostasy under Islamic law, was punishable by imprisonment and death in the North; however, reports up to 2010 indicate that death sentences had never been implemented. Sudanese Islamic law prohibited a Muslim man from marrying a non-Muslim woman, only allowing a Muslim woman to marry a non-Muslim if he converted to Islam. Although some converts came under signifi cant pressure in the North, none of the NGOs or other monitoring bodies suggested that this was systematic or widespread. Similarly, whilst there were no penalties in the South for apostasy, blasphemy, or proselytizing, both blasphemy and defaming Islam were punish- able by imprisonment in the North, 241 although there is no evidence to suggest that these were rigorously enforced.

During the peace process following the CPA, there were some positive govern- ment initiatives, at least optically, towards religious minorities. Th is included the appointment by the GoNU of a Coptic Orthodox priest to a governmental posi- tion in 2005. Th e Copts in Northern Sudan have historically had a higher profi le than other Christian denominations. For example, Copts have registered their church for tax exemption, whilst it is reported that other Christian denomina- tions remain reluctant to do so for fear of interference. 242

Th e CPA provided for the creation of a Commission for the Rights of Non-Muslims (CNMR), 243 inaugurated in April 2007, with a particular mandate to protect the rights of non-Muslims in the North. It was expected to provide a forum for inter-denominational dialogue. Leading up to the referendum in the South, the CNMR requested a series of amendments that exempted non-Muslims from restrictions imposed on civil liberties in the capital, including extending the curfew for Christian weddings and exempting Christians from closing their busi- nesses during Friday prayers and Ramadan. 244 Th ese proposals met with resistance by the Muslim Scholars Authority (MSA), which are the state-controlled clergy,

²⁴⁰ Th is is provided under 6.1–6.5 of the Comprehensive Peace Agreement (CPA) and Article 38 of the Interim National Constitution of 2005. Th e Interim Sudanese Constitution remains in force until Sudan adopts a permanent constitution. ²⁴¹ Prostelytizing was also restricted under the 1962 Missionary Act, which limited Christian mis-

sionary activities in the North. ²⁴² Minority Rights Group International, World Directory of Minorities and Indigenous Peoples—

Sudan: Copts (2008). ²⁴³ Under section 2.4.6 of the CPA. ²⁴⁴ For an overview of the relevant Public Order Acts see, REDRESS, Th e Draft Social Control Act,

2011, for Khartoum State: Flogging into Submission for the Public Order (November 2011).

1 Non-Muslim Religious Minorities 119

and failed to fi nd support from the ruling NCP. 245 Th e work of the CNMR, to date, has, unsurprisingly, been characterized as ‘largely ineff ective’. 246

Th e regulations and restrictions on Christian communities in the North remain unchanged at the time of writing. Religious organizations are registered as non-governmental, non-profi t organizations for tax purposes and building permits must be obtained before construction of any religious institution. Work weeks and school calendars operate according to Islamic requirements though Christians are offi cially permitted leave to attend religious services on Sunday morning. In practice, however, many employers do not comply and there is no legal remedy available to challenge this non-compliance. Schools in the North— both public and private—require Islamic religious studies on the curriculum, and this continues into university-level education. All classes are taught in Arabic.

Th ere are increasing dangers facing minority communities in the post-secession period. Th e failure of President al-Bashir to maintain national unity despite lim- ited overtures to the South resulted in increasingly ominous language. In com- menting on the NCP post-separation, the pro-parliamentary minority Lebanese daily Al-Akhbar reported that in a speech in December 2010, al-Bashir:

. . . pledged to be fi rm in the implementation of the Sharia in the north as soon as the separ- ation takes place, a clear sign too that the situation of the non-Muslims in the north of Sudan prior to the separation will not be similar to the post separation situation . . . But the most dangerous thing in Al-Bashir’s talk is that he has asserted that, when the separation comes, there will be no room for any talk about racial and cultural diversity in the coun- try. Th is threat provides the suffi cient motive to generalize the prototype of the southern demand for self-determination to several areas in Sudan. 247

Th e Coptic Orthodox Church 248 comprises the largest denomination of Christians in Egypt, with smaller communities drawn from the Armenian Apostolic, Catholic (Armenian, Chaldean, Greek, Melkite, Roman, and Syrian Catholic), Maronite, and Orthodox (Greek and Syrian) and approximately 16 Protestant denomin- ations including: Presbyterian, Anglican, Baptist, Brethren, Open Brethren, Revival of Holiness (Nahdat al-Qadaasa), Faith (Al-Eyman), Church of God, Christian Model Church (Al-Mithaal Al-Masihi), Apostolic, Grace (An-Ni’ma), Pentecostal, Apostolic Grace, Church of Christ, Gospel Missionary (Al-Kiraaza bil Ingil), and the Message Church of Holland (Ar-Risaala), which was estab- lished in Egypt in the mid-nineteenth century and followers of the Seventh-day

²⁴⁵ See ‘Sudan’s non-Muslim commission seeks to quell clerics’ anger’ Sudan Tribune (6 September 2010). ²⁴⁶ United States Commission on International Religious Freedom, Annual Report 2011—Coun-

tries of Particular Concern: Sudan (28 April 2011). ²⁴⁷ ‘Al-Bashir plays his last cards: Shariaa to attract Islamists’, Al-Akhbar Lebanon (24 December

2010). ²⁴⁸ Most estimates state the Coptic population to be between 6 and 15 million, or roughly 10–15

per cent of the total Egyptian population (80 million). Minority Rights Group International, World Directory of Minorities and Indigenous Peoples: Copts of Egypt (April 2011).

Minority Identities in the Middle East: Religious Minorities120

Adventist Church, which was granted legal status in the 1960s. Th e Christian community is scattered throughout Egypt with a higher population in Upper Egypt and the cities of Cairo and Alexandria. 249

Th e events following the ‘Arab Spring’ focussed attention on the relations between Muslims and Christians, particularly Copts, in Egypt. Th ere is much scholarly debate, and debate within the Coptic community, about the relation- ship of Copts to the Egyptian state. Whilst the Copts are physically and linguis- tically indistinguishable from the rest of the Egyptian population, many within the community believe they are a separate race with a distinct language and that they are not Arabs but descendants of the pharaohs, the original Afro-Nilotic people of the land. 250 Th is articulation of a distinct identity has played out within Egyptian civil society in several distinct ways and the identity politics of the region have been engaged internally and externally quite diff erently. Externally, the Copts are sometimes portrayed as a religious (non-Muslim) minority com- munity under siege and this narrative has been used to particular eff ect in the United States. 251 Internally, the discourse is quite diff erent, as Egyptian civil soci- ety has come to regard the Copts with some suspicion; whilst Egyptians march for democracy and self-governance from a repressive state, the demonstrations by Copts (some leading to violence) have been primarily to reassert their diff er- ence within Egyptian society. So while the international community interpreted the violent events of 9 October 2011 during which 26 Christians were killed by security forces as they demanded legislative rights, as another example of the rise of an increasingly intolerant Middle East for non-Muslims, the internal discourse was diff erent. Here the intervention of the international community on behalf of minorities had echoes of colonial past, the dangers of which we specifi cally highlight throughout this volume.

To understand this is to situate our reading of the minorities discourse within its colonial and imperial historical context. Colonizing powers often used eth- nic, religious, and social diff erences existing within their colonial enterprises as a means to govern through divide-and-rule policies. Appropriating and reinforcing these diff erences left footprints in post-colonial states, where the idea of embrac- ing diff erences was not seen as a mark of ‘liberalism’ but as a historical hangover

²⁴⁹ Much of the reporting in Egypt on the Christian community is focussed on the Coptic com- munity as they are the largest Christian denomination. It is reported that 60 per cent of Copts live in Upper Egypt, 25 per cent in Cairo, and 6 per cent in Alexandria. See D Zeidan, ‘Th e Copts–Equal, Protected or Persecuted? Th e Impact of Islamization on Muslim–Christian Relations in Modern Egypt’ (1999) Islam and Christian–Muslim Relations 53–67, 56. ²⁵⁰ P Van Doorn-Harder, ‘Copts Fully Egyptian but for a Tattoo?’ in Shatzmiller (n 4) 22–57, 24. ²⁵¹ Th e United States Copts Association, in particular, has applied pressure to draw attention to

the current situation in Egypt. See I El Amrani, ‘Th e Emergence of a “Coptic Question” in Egypt’, Middle East Report Online (28 April 2006): <http://www.merip.org/mero/mero042806> accessed 8 December 2012. American pressure has been a choice strategy because Egypt is the second highest receiver of aid from the United States (where the majority of Copts are located). Minorities at Risk, Assessment for Copts in Egypt : <http://www.cidcm.umd.edu/mar/chronology.asp?groupId=65101> accessed 14 March 2012.

http://www.merip.org/mero/mero042806

http://www.cidcm.umd.edu/mar/chronology.asp?groupId=65101

1 Non-Muslim Religious Minorities 121

of Western interference. Divisions that existed within the local fabric were used and, where diff erences were not explicit, they were crafted through mythologies of the past designed to serve colonial and neo-colonial powers well. Although this featured to a lesser degree under French rule vis- à -vis the Copts in Egypt, the role of appropriating and reinforcing diff erences among minorities in the Middle East is a shared history that cuts across borders.

Over two centuries ago, the Egyptian historian, El-Gabarti, described Egypt as a society in which an integrated Copt community lived and worked alongside Arab neighbours. Within Egypt, however, the social fabric has shifted dramati- cally within the past two decades. Th e reason for this is, in large part, because the sectarian entrepreneurship of colonial powers did not cease in the post-colonial era. Rather, such policies were recalibrated by new regimes, something evident in each of our three case studies. In Egypt,

. . . elite groups compete for hegemony [as] they manipulate the sectarian divide and the ideological confl ict over the form of the state—secular or religious—in order to gain easier access to power. Religious strife can thus also be seen as resulting more from inter-elite cleavages as diff erent segments manipulate Islam to legitimize their own status. 252

Th is, as Zeidan argues, mapped out on to the Muslim–Copt relationship. He notes that there has been: . . . in this century the tendency of unscrupulous politicians to manipulate the religious divide in an eff ort to strengthen their own position . . . 253 With intensifying religiosity at all levels of society, government and party leaders compete with each other in expressions of Islamic zeal that mask their manipulation of religion to consolidate power. 254

Mubarak’s exploitation of the colonial legacy resurrected ‘sectarian’ entrepre- neurs to secure his regime’s hold on its own power. Dangling both the possibil- ity of a civil war fought on sectarian lines and the threat posed by the Muslim Brotherhood made it possible to co-opt moderate Islamists and Copts. While it may have served immediate goals, it also sowed the seeds for the violence that followed. 255 Th e discourse that has accompanied the 2011 attacks of the Coptic community, in the post Arab Spring, are narrated internally in hauntingly similar ways and:

. . . [i]f the public response to sectarian attacks is reminiscent of the pre-revolution period, so is the handling of the crisis by the armed forces and transitional government . . . By and

²⁵² Zeidan (n 249) 55. ²⁵³ Ibid 54. Zeidan quotes Carter, ‘for example, the Liberal Constitutionalist party attacks on the

Copts in the Wafd following the 1929 treaty with Britain; the controversies in the Wafd between Makram ‘Ubayd and Mustafa al-Nahhas in the1940s; and the policies of Sadat who in 1980–1981 openly accused the Copts of a conspiracy against the state in order to bolster his alliance with the Islamic groups against the political left’. ²⁵⁴ Ibid. ²⁵⁵ For some of the violent incidents that have involved Christians, see Integrated Regional

Information Networks (IRIN), Egypt: Timeline of Sectarian Violence (11 October 2011).

Minority Identities in the Middle East: Religious Minorities122

large, the army has resorted to the same mechanism used by Mubarak’s state security offi c- ers to paper over sectarian confl ict—‘reconciliation committees’—except that now salafi sheikhs are key players therein. Th ese committees serve to thwart legal recourse for wrong- doing and perpetuate inequality . . . 256

In the public domain, the Copts are given assurances that they will be safe as pro- tected persons because of their religion, not apart from it. 257 As Tandros observes, post Mubarak:

Legal justice is necessary but insuffi cient to transform social relations: With the slogan ‘Raise your head high, you are Egyptian’ replaced in many locales with ‘Raise your head high, you are Muslim’, it is diffi cult not to sense that the revolution has been hijacked. Is there popular will to seize it back? Such is one of the pressing questions facing Egypt. 258

As the social process unfolds, other changes continue within the legal landscape. Th e Supreme Council of the Armed Forces, in power since President Mubarak’s resignation, adopted a new provisional fundamental law or a Provisional Constitution on 30 March 2011, as a temporary measure until a new regime is established and a new constitution agreed. 259 Th e original Egyptian Constitution (1923–53) contained a freedom of religion provision. Since then it has been amended a number of times and was overhauled in 1971 to comply with the requirements of the Federation of Arab Republics. 260 Th e most relevant sections of the Egyptian Constitution concerning human rights are Articles 2, 40, 46, and 151. Article 2 reads: ‘ Islam is the religion of the state, Arabic its offi cial language. Islamic jurisprudence is the principal source of legislation.’ 261 Even this clause has gone through a number of alterations. It 1923, it read that ‘the religion of the state is Islam and its language is Arabic’; in 1971, President Sadat implemented the phrase ‘Islam is a source of legislation’. 262

In 1981, Mubarak elevated this to ‘the chief source of legislation’. 263 Th is article has been interpreted to mean that Shar î’ ah law is the principle source of legisla- tion. Shar î’ ah , or ‘God’s law’, deals with many topics far beyond religion, includ- ing diet, prayer, hygiene, sexuality, and judges. 264 Th e imposition of Shar î’ ah on

²⁵⁶ M Tandros, ‘Sectarianism and its Discontents in Post-Mubarak Egypt’ (2011) 41 Middle East Research and Information Project 259. ²⁵⁷ Ibid. She goes on to note that ‘In the 90 years since Egypt’s Constitution was promulgated in

1922, the terms “Nazarene” and “ ahl al-dhimma ” have been so prominent in public discourse only once before, during the resurgence of Islamist movements in the 1970s.’ ²⁵⁸ Ibid. ²⁵⁹ A Ahmed, ‘Egypt to Announce New Working Constitution’ CNN World : <http://articles.

cnn.com/2011-03-30/world/egypt.constitution_1_new-constitution-emergency-laws-egypt?_ s=PM:WORLD> accessed 12 March 2012. ²⁶⁰ S Kent Brown, ‘Th e Coptic Church in Egypt: A Comment on Protecting Religious Minorities

from Non-state Discrimination’ (2000) Brigham Young University Law Review 1049–98, 1058. ²⁶¹ Constitution of Th e Arab Republic of Egypt, adopted 1971 (emphasis added). ²⁶² See T Moustafa, Th e Struggle for Constitutional Power: Law, Politics and Economic Development in

Egypt (Cambridge University Press 2007) 107. ²⁶³ Ibid. ²⁶⁴ C Horrie and P Chippindale, What Is Islam? A Comprehensive Introduction (Virgin Books 1991) 46.

http://articles.cnn.com/2011-03-30/world/egypt.constitution_1_new-constitution-emergency-laws-egypt?_s=PM:WORLD

1 Non-Muslim Religious Minorities 123

non-Muslims is one of the main complaints by Copts. For instance, under Shar î’ ah , a Muslim who converts to another religion could be subject to death, while any- one can convert to Islam and is encouraged to do so. Th is caused strife between Muslims and Copts as Muslims claimed that the latter have converted to Islam and are being tricked into returning to the Coptic Church. Reports claim that 50,000 Copts converted to Islam between 1988 and 1990 while at universities. 265

Article 40 guarantees equality for all Egyptians, stating: ‘All citizens are equal before the law. Th ey have equal public rights and duties without discrimination between them due to race, ethnic origin, language, religion or creed.’ 266 Article 46 provides: ‘Th e state shall guarantee the freedom of belief and the freedom of practice of religious rites.’ 267 Both articles are compatible with the Universal Declaration of Human Rights. Article 151 binds Egypt to international law, stating: ‘Th e President of the Republic shall conclude treaties and communicate them to the People’s Assembly, ratifi ed with suitable clarifi cations. Th ey shall have the force of law after their conclusion, ratifi cation and publication accord- ing to the established procedure.’ 268 However, the following qualifi er brings this into question: ‘taking into consideration the provisions of Islamic Sharia and the fact that they do not confl ict with the text annexed to the instrument, we accept, support and ratify it’. 269

Th e revolutionary period in Egypt provides dangers and opportunities for Christian communities. Dangers lurk in the tendency of state authorities to play the sectarian card coupled with the ‘hijacking’ of the popular movement by cer- tain factions within society. Th e struggle continues not just for the human rights discourse but for a narrative that accompanies this historical event. Egyptian civil society has been victim and stakeholder in the sectarianism that has exploded in the past two decades. Whether the divisions crafted by powerful elites take root remains to be seen. Th e constitutional process hints at where identity politics are going and it is here where Christian communities may have some infl uence in crafting a constitution.

Th e role minority communities have played 270 in the historical formation of Lebanon is critical to understanding its contemporary politics. As noted ear- lier, in constructing our typology of minorities, the inclusion or exclusion of groups in our review of ‘minorities’ is not based solely on demographics but on their relationship to sites of power in any given state. Th e characterization

²⁶⁵ I Boles, ‘Egypt–Persecution’ (2001) Middle East Quarterly 23–9, 23. ²⁶⁶ Constitution of Th e Arab Republic of Egypt. ²⁶⁷ Ibid. ²⁶⁸ Ibid. ²⁶⁹ IH Ibrahim, Study of the Present Egyptian Constitution and the Law Articles that Confl ict with

Minority Rights, (United Nations Human Rights Offi ce of Th e High Commissioner For Human Rights 2005). ²⁷⁰ For the Maronite community, in particular: ‘Th e civil war was catastrophic for the community,

which shrank from an estimated 800,000 in 1975 to 600,000 or so by 1990.’ See Minority Group International, World Directory on Minorities–Lebanon: Maronites (2008).

Minority Identities in the Middle East: Religious Minorities124

of Lebanon with a ‘centuries-old heritage as a place of refuge for those fl eeing religious intolerance’ 271 is often replicated in the literature and in governmental and non-governmental reports. 272 Th is mythology of Lebanon as a minority rights model is addressed in Chapter 6. However, in Lebanon, as in the wider region, it is historical (colonial) antecedents that inform and ultimately leave a tragically indelible footprint on the fragile and fractionalized state that has emerged.

Th e Lebanese Civil War began in 1975, continued to 1990 and resulted in an estimated 100,000 deaths. Th e confl ict has been compared with other protracted confl icts—Northern Ireland and the former Yugoslav Republics are two of the more obvious comparisons—that were, ostensibly, fought on ethno-religious grounds. Yet, as each of these confl icts revealed, ethno-religious divisions do not fully explain the genesis of the confl ict. Like other states emerging from decolo- nization, Lebanon’s exogenously created borders divided groups between states and created myriads of groups divided on ethno-religious fault-lines with divisions within divisions. In this fractioned and fractionalized state, the question should not have been whether confl ict could be kept latent, rather of when it would emerge.

When ignited, the war inevitably followed confessional lines. 273 However, the reality was more complex; the colonial divide-and-rule legacy left Lebanon’s political foundation ill-equipped to absorb the much larger Arab–Israeli confl ict that was parked at its southern door. As a result of this confl ict, Lebanon was home to approximately 150,000 Palestinian refugees, who had arrived in the wake of the 1948 war, a fi gure that by the 1970s had risen to 400,000. It is hard to imagine that the extent of the Diaspora, and the proxy war that unfolded as a result, would not have tested even the most stable regime. However, Lebanon’s fragile and elite-dominated coalition would prove particularly vulnerable to the divisions that the Palestinian crisis exposed.

Independent Lebanon replicated previously established consociational arrangements, 274 cementing rather than assimilating ethno-religious diff erences. Shatzmiller argues that it was this system that led to Lebanon’s descent into civil war. 275 Moreover, executive power remained in the hands of political elites with a Christian President, a Sunni Prime Minister and, further down the power line, a Druze Foreign Minister. Th is arrangement superfi cially accommodated the interests of each group as Lebanon embarked on a laissez-faire economic policy

²⁷¹ See United States Department of State, 2010 International Religious Freedom Report—Lebanon (13 September 2011) 1. ²⁷² See, for example, J Rehman, ‘Accommodating Religious Identities in an Islamic State:

International Law, Freedom of Religion and the Rights of Religious Minorities’ (2000) 7 International Journal on Minority and Group Rights 139–66, 152. ²⁷³ Th e often sectarian nature of the confl ict would give rise to comparisons with the Balkans and

Northern Ireland—where killings were undertaken along religious lines. ²⁷⁴ Th ese were created through the 1943 National Pact. Th e pact ensures that political power is

distributed amongst religious groups at both the national and local level and mandates that the presi- dent, prime minister, and speaker of parliament be Maronite Christian, Sunni Muslim, and Shi ‛ a Muslim, respectively. ²⁷⁵ Shatzmiller (n 4) 95.

1 Non-Muslim Religious Minorities 125

bringing relative economic prosperity for some and a relatively liberal social policy. However, the crisis that unfolded in 1958 highlighted growing political and economic disenfranchisement of the urban and rural poor, who were largely Shi ā a, from the Maronite and Sunni elite. It also exposed the divisions within Lebanon as Christian leaders looked to the West, and embraced the American Eisenhower Doctrine, whilst a signifi cant part of Muslim civil society was drawn to the East and pan-Arab nationalism. It was not just ethno-religious cleavages that underpinned the fault lines in Lebanese civil society; the development of a national identity was also problematic since Lebanon was a state without a nation.

Th e seeds for confrontation were, therefore, sown long before 1975. Clashes between Christian Phalangist forces and Palestinian para-militants provided the spark to set the confl ict alight. Th e protracted confl ict that ensued must be understood in that wider context. Th e clashes themselves exposed, as had the earlier 1958 disturbances, political elites that had endeavoured to divorce them- selves from the realities of geography. Th at geography refused to allow Lebanon to divorce itself from the Arab–Israeli dispute or the Israeli–Palestinian confl ict that captured the political landscape of the region for years to come. Th e clashes subsumed and channelled issues that were as much about Lebanese governance as about Palestinians’ presence in Lebanon. While the Sunni–Maronite coali- tion may have been indiff erent to the Arab–Israeli confl ict and the Palestinians within, they diff ered sharply on how to handle the crisis. Th e Maronites favoured military response, which could not be endorsed by the Sunni. Th e coalition fell under the weight of its own indecision coupled with probable external interven- tion on the part of Syria, which allegedly provided succour to Palestinian militia and pan-Arab fractions within Lebanon.

Th e protracted 15-year civil war did not just refl ect the intransigence of the Palestinian question but, concomitantly, fed competing views of just what type of nation Lebanon ought to become. Once the gates were open, a ‘meta’ confl ict 276 ensued. Palestinians continued their off ensive against Israel with rhetorical Arab support and more tangible Syrian support, as the latter fought a proxy war through Palestinian militia and the Shi ‛ a Amal. Palestinians also engaged in an internecine battle that led to the expulsion of the Palestinian Liberation Organization’s leader, Yasser Arafat, and that aff ected Fatah militia in 1982. Israel, with its own armed proxy forces, a Christian militia 277 in the South Lebanon Army (SLA), retali- ated, resulting in fi rst a partial, then full, occupation by 1982. 278 A third layer of inter-factional fi ghting, between Christian and Muslim and Shi ‛ a and Sunni coupled with the emergence of a number of militias that eventually controlled

²⁷⁶ Th at is, it became not just an overt confl ict, but also a confl ict about the nature of the confl ict. ²⁷⁷ To complicate matters further, the SLA were themselves engaged in a struggle with the Druze. ²⁷⁸ Th e invasion by Israel into Lebanon began on 6 June 1982. It was referred to in Israel as

Operation Peace of the Galilee. Th e invasion was ordered as a retaliation for the assassination of Israel’s ambassador to the United Kingdom, Shlomo Argov, by the Abu Nidal Organization.

Minority Identities in the Middle East: Religious Minorities126

seven separate zones, divided the landscape further, providing some insight into the protracted nature of the confl ict.

In the wake of the failure of Pax Syriana, 279 the 1990 Ta’if Peace Agreement studied in detail in Chapter 6, eventually ended the confl ict. Th e Agreement did not remedy what would remain an endemically divided society; Arab intervention and war-weariness were signifi cant factors in ending the confl ict. Th e Charter of National Conciliation, discussed later, was devised to rectify the potential imbal- ance in representation among the groups. Implementation of the Charter proved problematic in the face of signifi cant Christian opposition, the Charter clearly threatening its elite position.

While the confl ict ended, the ethno-religious issues and political instability that proved a fertile ground for the 15-year civil war, remains. So too does the tension with both Israel, whose occupation lasted until 2000 and Syria, who remained in occupation in Lebanon until 2005. July 2006 also brought further war between Israel and Hezbollah, lasting 33 days. Th is was followed by an armed confl ict that led to the destruction of the Nahr el-Bared camp for Palestinian refugees, in 2007, and sectarian violence, in 2008, which caused internal displacement of populations in Lebanon. In 2011, refugees fl eeing the Syrian uprising crossed into Lebanon, with reports of insurgents using Lebanon as an anti-Syrian base. Th is prompted the Syrian military to launch incursions into Lebanon, prompt- ing the UN Special Coordinator for Lebanon to call for greater control over the borders between the two countries. 280

Th e Maronite community remains the largest Christian group in modern Lebanon, reportedly comprising 21 per cent of the overall population. It is affi li- ated with the Roman Catholic Church but has its own patriarch, liturgy, and ecclesiastical customs. Th e Greek Orthodox community comprises 8 per cent of the population, followed by Greek Catholics at 5 per cent and a smaller number of other Christian sects including: Armenian Orthodox (Gregorians), Armenian Catholics, Syriac Orthodox (Jacobites), Syriac Catholics, Assyrians (Nestorians), Chaldeans, Copts, evangelicals (including Protestant groups such as Baptists and Seventh-day Adventists), and Latins (Roman Catholic). Th ere is also a signifi - cant Iraqi Christian refugee population estimated at 10,000. 281 Lebanon’s cur- rent sociopolitical landscape remains divided between those who desire a closer relationship with the Arab world and those who look west—a division mirrored

²⁷⁹ Pax Syriana is a concept that originally referred to the potential of Syria to create peace in Lebanon as a result of diplomacy and military strength. Contemporaneously, it refers to a term used in US circles that means the reshaping of the Middle East. For an excellent discussion on this, see J Chalcraft, Th e Invisible Cage, Syrian Migrant Workers in Lebanon (Stanford University Press 2009) 135–78. ²⁸⁰ UN News Service, ‘UN offi cial voices concern over Lebanon’s control of its borders’ (14

November 2011). ²⁸¹ See UN High Commissioner for Refugees, Statistical Report on UNHCR Registered Iraqis

and Non-Iraqis (30 September 2011). Th is comprises 51 per cent of the total Iraqi population in Lebanon.

2 Islamic Minorities 127

within Lebanese society and within Lebanon’s Christian (especially Maronite) community.

Although recent governmental and non-government reports monitoring reli- gious freedom in Lebanon do not report any signifi cant change in government policy toward religious minorities, there remains ‘an increasing trend of emi- gration by the Maronites from Lebanon [which] is contributing not only to its numerical shrinkage but also to its decreasing political clout in the politics of the country’. 282 Th is demographic shift, should it continue, may well alter the socio- political landscape in Lebanon.

2 Islamic Minorities

We have chosen not to adopt the term ‘heterodox’ for those included as Muslim religious minorities in this analysis. Although this term often appears to describe these communities, there are numerous diffi culties with its application. First, terms such as ‘heterodox’ or ‘orthodox’, when applied to Muslims, are problem- atic. Th ese are terms that were likely borrowed from Christianity and do not cor- relate when referring to Islamic formulations. As Armstrong argued, ‘Islam is a religion that requires people to live in a certain way, rather than to accept certain credal propositions. It stresses orthopraxy rather than orthodoxy.’ 283 It is possible to fi nd the term ‘ Firaq 284 Batila ’ (meaning deviated group) applied to certain groups in some Islamic traditions but since it was used to condemn an idea, not the individuals who possessed these ideas, the heterodox were only enumerated. As well, historically, many of these groups were seen as political opposition and ex-communicated under state pressure. Th us, ‘heterodoxy’ of those sects contin- ues to be contested. Within this category of communities, we will examine the ‘Alawis, Druze, Babism, and the Baha’i Faith, and Ismaili communities.

2.1 ‘Alawis

In his examination of the ‘social roots’ of Syria’s ruling regime, Batutu notes that, ‘[u]ntil recently the ‘Alaw ī community was in an objective sense a sect-class, which worked as agricultural labourers for the ‘relatively middling Christian and Sunni landowners’. 285 In the current Syrian context, the ‘Alawis are a dominant minor- ity; however, ‘[u]nder the Ottomans they were abused, reviled and ground down by exactions and, on occasions, their women and children led into captivity and

²⁸² See Minority Group International (n 270). ²⁸³ K Armstrong, Islam a Short History (Phoenix Press 2002) 66–7. Also see R Gauvain, ‘Ritual

Rewards: A Consideration of Th ree Recent Approaches to Sunni Purity Law’ (2005) 12(3) Islamic Law and Society 333–93, 334. ²⁸⁴ Th is is the plural of Firqa, meaning group. ²⁸⁵ H Batatu, ‘Some Observations on the Social Roots of Syria’s Ruling, Military Group and the

Causes for Its Dominance’ (1981) 35(3) Middle East Journal 331–44, 333.

Minority Identities in the Middle East: Religious Minorities128

disposed of by sale’. 286 In addition, the ‘Alawi community has, historically, been ‘religiously divided into Shams ī s, Qamar ī s and Murshidiyy ī n’. 287 Th e largest sect, the Qamaris, ‘regard ‘Al ī [the cousin and son-in-law of the Prophet Mohammed] as the ma’na or “meaning” of the divinity’. 288 Th e ‘Alawi belief system is grounded in neoplatonic philosophy, with a Gnostic interpretation on Shi’ism, and an alle- gorical interpretation of Islam’s standard texts and legal tradition, with corres- ponding practices not recognized by mainstream Islam. 289 ‘Alawis still identify as Shi’ite Muslims 290 but are considered by Sunni Muslim to be heretics and more infi del than both Jews and Christians. 291

Within our study region, ‘Alawi communities exist in Syria, Lebanon, Iran, and Saudi Arabia. 292 Much of the current literature focusses on their role in Syria’s political and military regime, with much less written on their status in other states which, at least in part, may be attributable to the confl ation of ‘Alawis with Sufi s or other Shi ‛ a off shoot groups, making it diffi cult to fi nd community spe- cifi c information. In Lebanon, the ‘Alawis comprise one of the smallest Muslim minority groups, estimated at 100,000. 293 Th ey are offi cially recognized as one of Lebanon’s 18 offi cial sects. Th ey secured two seats in Parliament through the 1989 Ta’if Agreement. Under Lebanese laws, powers are accorded to religious minority groups, including the ‘Alawis, in matters of personal status, which pri- marily relate to issues pertaining to marriage, children, inheritance, and testa- mentary. 294 Th e ‘Alawis have their own courts comprising a court of fi rst instance and a higher Shar î’ ah court with appellate jurisdiction.

Under Article 12 of the Constitution of Iran, the offi cial religion is Islam and the Twelver Ja’fari school with ‘[o]ther Islamic schools including the Hanafi , Shafi ’i, Maliki, Hanbali, and Zaydi . . . to be accorded full respect, and their fol- lowers are free to act in accordance with their own jurisprudence in perform- ing their religious rites’. 295 Th is has excluded a number of Shi ‛ a schools such as Ismailis and ‘Alawis. Within Iran, the ‘Alawis, known as Ahl-e Haq, 296 live

²⁸⁶ Ibid 334. ²⁸⁷ Ibid. ²⁸⁸ Ibid 335. Asad is from this sect. ²⁸⁹ Y Friedman, Th e Nusayri—‘Alawis: An Introduction to the Religion, History and Identity of the

Leading Minority in Syria (E J Brill 2010). ²⁹⁰ L Etheredge (ed), Syria, Lebanon, and Jordan (Britannica Educational Publishing 2011). ²⁹¹ Minority Rights Group International, World Directory of Minorities 2009 Gale Group Inc Alawis

of Syria (2009). ²⁹² Whilst Turkey falls outside of our study area, it is worth noting that it has a signifi cant ‘Alawi

population, estimated at 200,000. ²⁹³ Th is fi gure should be noted with some caution. Th e only numeric estimate provided for ‘Alawis

in Lebanon is from Minority Rights Group International in a 2008 report. All other sources simply note their presence or suggest the community is one of the smallest denominations. Minority Rights Group International, World Directory of Minorities and Indigenous Peoples—Lebanon: Overview (June 2008). ²⁹⁴ Under law of 16 July 1962 relating to the Sunni, Shi’i, and ‘Alawi denominations. ²⁹⁵ Article 12, Constitution of the Islamic Republic of Iran. ²⁹⁶ Th is is sometimes noted as Ahl-i Haq.

2 Islamic Minorities 129

mainly in the west, in Kurdistan and close to Azerbaijan. Th eir exact numbers are unknown as they are often incorrectly categorized as Sufi ’s or Shi ‛ a. FIDH notes that this group has been the target of repressive measures and, ‘[s]ome Ahl-e Haq followers have been sentenced to death in the past’. 297 Amnesty International has noted that members of Ahl-e Haq ‘suff er discrimination, harassment, arbitrary detention, and attacks on community property’. 298

Th e ‘Alawi community in Syria—the subject of much of the literature on the community—are estimated to comprise 11 per cent of the population (2.1 mil- lion) and live mainly in Lataki, where they comprise approximately two-thirds of the population. Th e Sunni majority in Syria consider the ‘Alawis’ belief to be heretical as it rejects traditional Islamic restrictions. Th eir rise to power in Syria is detailed in Chapter 5; as noted, one key factor to the attainment and retention of power was the Ba ‛ th political party. 299 When the Ba ‛ thist party formed in the 1950s, their socialist ideology appealed to marginalized groups in Syria, which at the time included the Alawi community, who joined the party in disproportion- ate numbers. 300

When the Ba ‛ th party seized power in a coup in 1966, the ‘Alawis were in a perfect position to take high government positions and overall control, and their grip on political, military, and economic power has only grown since 1966. 301 Since Hafez al-Asad’s successful coup in 1970, ‘Alawis have held all major mili- tary positions. As Lisa Wedeen notes: ‘Th e military is another institution that provides the regime with an important political constituency and protects the regime from internal opposition. Th e heads of the security forces are among Asad’s top advisers. And they, like the President, tend to be military offi cers from the minority ‘Alawi sect.’ 302

After Hafez al-Asad’s death in 2000, his son, Bashar, assumed control of the gov- ernment. His initial promises of political reform never materialized. Embedded in the regime’s rule is a permanent state of exception, in place since the 1970 coup. Whilst the legal regime of exception under the ‘States of Emergency Laws’ was initially erected to establish stability following regime change, the regime has claimed it remains necessary in light of a persistent Israeli threat. Until the politi- cal unrest in 2011, the levels of repression enabled through these laws ensured relatively little open opposition to the ‘Alawi rule.

²⁹⁷ See, International Federation for Human Rights, Th e Hidden Side of Iran: Discrimination Against Ethnic and Religious Minorities (21 October 2010) 24. ²⁹⁸ Amnesty International, Annual Report 2011—Iran (13 May 2011). ²⁹⁹ MA Faksh, ‘Th e Alawi Community of Syria: A New Dominant Political Force’ (1984) 20(2)

Middle Eastern Studies 133–53. ³⁰⁰ Batatu (n 285) 342–3. ³⁰¹ Ibid 331–44. For an overview of the ‘Alawis rise to power, see also Y Sadowski, ‘Ba ‛ thist Ethics

and the Spirit of State Capitalism’ in PJ Chelkowski and RJ Pranger (eds), Ideology and Power in the Middle East (Duke University Press 1988) 160–84. ³⁰² L Wedeen, Ambiguities of Domination (University of Chicago 1999) 179 fn 89.

Minority Identities in the Middle East: Religious Minorities130

Despite the pressures of the Syrian uprisings since 2011, there has been (to date) no change in government. Although it has been argued that the ‘objec- tives of the uprising are focused on issues of political rights and civil liberties, and are not formulated in relation to the rights of groups defi ned in ethnic or religious terms. Rather, they refer to the rights of the Syrian people without distinction.’ 303

What is notable is the absence of religious minority participation in the upris- ings which may, in part, be explained by the ‘regime’s instrumentalisation of sectarian affi liations [which] inhibited collective action and opposition’. 304 What is also clear is that the narrative ‘that Syria’s diverse religious groups (i.e., Sunnis, Alawis, Ismailis, Druzes, and Christians), and ethnic groups (e.g., Arab, Kurd, Turkoman, Assyrian, and Circassian) would retrench to positions based on nar- row communal identities’ has been proff ered by the Asad regime to keep reli- gious minority groups on side by creating a ‘fear of sectarianism’. 305 Th ere are many unpredictable elements to the current political uprising in Syria, though it appears unimaginable that Asad’s regime could survive the internal unrest and external pressures. Should he successfully retain power in the short term, it is unlikely that he would continue to govern through state repressive mechanisms alone. If he is removed and a Sunni majority government is formed, inevitably, the role of minorities will be critical to the ‘exercise of political-community mak- ing that entails a re-imagining of the nation, in practices and discourse, in terms that counter and undo the regime’s practices of government and rule’. 306

2.2 Druze

Th e Druze religion has its origins in Egypt and arose during the period of the sixth Fatimid Caliph al-H ā kim (996–1021). 307 Although an off shoot of Shi’ism, the Druze have incorporated aspects of Islam, Judaism, and Christianity into their practices and beliefs. Th at they reject traditional readings of Islam as well as its practices has often been held as heretical by other Islamic schools. Th ey also have a distinct social structure and, in contrast to personal status laws infl uenced by Islamic formulations, Druze personal status laws confer equal status to men and women in marriage, and women’s status in Druze society is equal and, some argue, higher than men. 308

Although we refer to the Druze, historically the Druze, ‘[c]lans were split by internal feuds; the “wise men” of the esoteric Druze religion did not share the

³⁰³ S Ismail, ‘Th e Syrian Uprising: Imagining and Performing the Nation’ (2011) 11(3) Studies in Ethnicity and Nationalism 542. ³⁰⁴ Ibid 540. ³⁰⁵ Ibid. ³⁰⁶ Ibid 547. ³⁰⁷ F Kais, A History of the Druze (Brill Academic Publications 1992) 4. ³⁰⁸ For an overview of Druze practices and belief, see, N Abu-Izzeddin, Th e Druzes: A New Study of

their History, Faith and Society (EJ Brill 1984).

2 Islamic Minorities 131

religion’s core beliefs with the mere laity; and Druze clans could unite with Shi’is, Sunnis, or Christians against other Druze clans’. 309 In much of the Western lit- erature on the Druze, an emphasis on the institution (and practice) of al-Taqiyya is found. Taqiyya is often used to explain the political behaviour of the Druze community. Whilst there are a number of types of Taqiyya practised by the Druze, Layish distinguishes four key elements: submission to power regardless of the nature of that government; neutrality when possible; concealment of their religion; and a tendency to adopt the dominant religion of their home state. 310 Whilst almost all studies of the Druze note the importance of Taqiyya, and often rely on this to frame Druze behaviour in states, 311 it is not, as one author has argued, the only factor: ‘At the centre of their ethno-religious experience the Druzes are a heterodox community distinct from their Islamic environment, and their legal and religious status has always been problematic in the eyes of ortho- dox Sunni Islam.’ 312

Th e Druze are present in a number of states across the Middle East, including Lebanon, Israel, Jordan, and Syria including the Golan Heights. Within Syria, the Druze constitute approximately 3 per cent of the population and are the third largest minority group. 313 Historically, until 1963, the Druze and ‘Alawi commu- nities shared power in Syria by military force. 314 Th is relationship changed after an unsuccessful attempt by the Druze to seize power from the ‘Alawi in 1966, after which they were purged from military positions of power. Druze have since, had nominal positions in the government—in 2010, there was one Druze mem- ber of Parliament. Whilst power is disproportionately in the hands of the minor- ity ‘Alawi community, the ‘divide-and-rule tactics [by the ruling regime] have kept most Alawites, many Christians, as well as some Druze and Sunnis on its side’. 315 Indeed, the fear that many minority communities have of ‘the risks of a putative sectarian breakup, along with a pervasive sense of mutual distrust among communities, have contributed to the perception of this regime as a lesser evil’. 316

³⁰⁹ Here Cole and Kandiyoti are describing the Druze in the Shouf mountains, but this characteri- zation is typical in other literatures on the Druze: see JR Cole and D Kandiyoti, ‘Nationalism and the Colonial Legacy in the Middle East and Central Asia: Introduction’ (2002) 34 International Journal of Middle East Studies 189–203, 191; Y Hazran, ‘Between Authenticity and Alienation: Th e Druzes and Lebanon’s History’ (2009) 72(3) Bulletin of the School of Oriental and African Studies 459–87. ³¹⁰ A Layish, ‘Taqiyya Among the Druzes’ (1985) 19 Asian and African Studies 245–81, 261. ³¹¹ N Landfi eld Ostrovitz, ‘Who Are the Druze?’ (1983–1984) 146(3) Subnational Confl ict World

Aff airs Institute 272–6. ³¹² Hazran (n 309) 480. ³¹³ See UN Human Rights Council, Report of the Independent International Commission of Inquiry

on the Syrian Arab Republic (23 November 2011) A/HRC/S-17/2/Add.1, para 15. ³¹⁴ As Batutu noted, ‘the Ba ‛ th regime [in Syria] derived support at one point or another not only

from the rural-inclined ‘Alawi military element but also from one or the other, or from all, of three other major army groups of rural background, [including] the Druze group.’ See, Batatu (n 285) 339. ³¹⁵ International Crisis Group, ‘Uncharted Waters: Th inking Th rough Syria’s Dynamics’ (24

November 2011) 31 Middle East Briefi ng 3. ³¹⁶ International Crisis Group, ‘Popular Protest in North Africa and the Middle East (VI): Th e

Syrian People’s Slow-motion Revolution’ (6 July 2011) 108 Middle East/North Africa Report 2.

Minority Identities in the Middle East: Religious Minorities132

Yet, concomitantly, it may well be that whatever post-Asad landscape emerges, minority groups such as the Druze, who have formed this uneasy alliance with the current regime, will be held responsible for its actions.

In the Occupied Syrian Golan, approximately 18,000 Druze have lived under Israeli military occupation since 1967. 317 Druze communities in the four remain- ing Druze villages in the Golan were separated from family ‘across the demarca- tion line and contact has been virtually impossible since 1967 for all but the few pilgrims and students who have been allowed to cross each year’. 318 Th e confi scation of land for Israeli settlements has brought the Druze community into confrontation with Israeli settlers and the state as ‘[i]llegal settlements have become a means used by the Israeli Government to establish physical and demo- graphic obstacles to a withdrawal from occupied territory by creating “facts on the ground”’. 319

According to the Internal Displacement Monitoring Centre, since 1981, there are 20,000 Israeli settlers and 32 settlements in the Golan. Israeli attempts to co-opt the Druze in the Golan Heights have been largely unsuccessful. 320 Druze self-identify as Syrian and have historically remained loyal to the Syrian state. 321 In a parallel report to CERD in consideration of Israel, Al-Marsad, an Arab Human Rights Centre in the Golan Heights, summarized the current conditions of Syrian Arabs (Druze) living within the Occupied Syrian Golan (OGS):

Israel’s discriminatory policies and laws against the Arab population of the OSG have resulted in a slow erosion of Syrian culture within the territory. Th rough forced displace- ment the Arab population has been depleted and replaced with Israeli settlers . . . Villages have been destroyed and farmers have been denied access to their agricultural lands due to landmines and a range of legislation causing the Syrian way of life and agricultural tradi- tions to be slowly eradicated. Th e Syrian curriculum within Arab schools has been replaced by the Israeli curriculum . . . One of the consequences of this is that there is a lack of oppor- tunity within the OSG for Syrian Arabs to engage their right to equal participation in

³¹⁷ Israel took military control of the territory in 1967 and annexed it in 1981 in contravention of international law. For an overview of the international legal questions see, R Murphy and D Gannon, ‘Changing the Landscape: Israel’s Gross Violations of International Law in the Occupied Syria Golan’ (2008) 11 Yearbook of International Humanitarian Law 139–74. ³¹⁸ Internal Displacement Monitoring Centre, Internal Displacement: Global Overview of Trends and

Developments in 2010—Syria (23 March 2011). See also earlier report by the UN Secretary General, UN General Assembly, Th e Occupied Syrian Golan: Report of the Secretary-General , 16 September 2009, A/64/354. ³¹⁹ Murphy and Gannon (n 317) 151. ³²⁰ Th e Israeli government attempted to give Druze Israeli identity cards, which led to a strike

against the cards and the annexation in 1982. ³²¹ During 2012, there were reports that, within the Golan, Druze were being divided into pro-

and anti-Asad camps, with local leadership steadfastly supporting Asad and threatening community ostracization for showing support for protestors in Syria, and Druze community members divided on this stance. Seeleader, I Kershner, ‘In the Golan Heights, anxious eyes look East’ Th e New York Times (21 May 2011); A Teibel, ‘Golan Druse support for Syria’ Associated Press (22 February 2012); Integrated Regional Information Networks, Israel–Syria: Golan’s Druze Community Divided Over Protests (17 May 2011).

2 Islamic Minorities 133

cultural activities. Funds that are off ered by Israel, who has eff ective control of the territory, for the development of Israeli and Jewish culture within the illegal settlements are not off ered to the Arab population. Furthermore, education is key in helping a culture fl our- ish, yet the Israeli curriculum does not facilitate Arab cultural activities. Th is all culminates in a signifi cant violation of Article 5(e)(iv) [of the ICESCR]. 322

Th e history of the Druze in Lebanon is both complex and contested. During the Ottoman times, up until the mid-nineteenth century, the Emirate of Mt Lebanon had been governed by a number of religious groups, including the Druze. At that time, Mt Lebanon, also known as Mutasarrifi yya , was administered as a special sanjak (district) within the Empire with greater autonomy. Under Fakhr al-D ī n II (1590–1635), the Emirate’s borders were expanded, creating ‘certain pat- terns of co-operation and co-existence between Druzes and Maronites’. 323 Th is period marked the end of Druze hegemony in Lebanon. Th e Shih ā b ī era that followed proved ‘devastating and traumatic’ for the Druze as they were ‘gradually transformed . . . from a dominant community into a secondary one’; 324 a process accelerated by the growth of the Maronite community and their exploitation of European ties. Under the ‘National Pact of 1943’, the offi ces of the Lebanese Presidency were designated to a Maronite Christian, the offi ce of Prime Minister to a Sunni Muslim, and the Speaker of the Chamber of Deputies to a Shi ‛ a Muslim. No similar guarantees were made to the Druze although they are repre- sented in Parliament (the Ta’if Agreement allocates them eight of the seats). 325 As one commentator noted, the Druze have ‘never been reconciled to their marginal political position in the confessional system’. 326

Th ere are approximately 234,000 Druze living in Lebanon concentrated mainly in Matn, Gharb, and Shuf, with smaller numbers in southern Lebanon and Beirut. In contemporary Lebanese society, the Druze are divided along political fault lines—some supporting and others opposing Syria’s infl uence. Druze leader, Talal Arslan, allied himself with Christian General, Michel Aoun, and Sunni, Omar Karami, in the ‘March 8 alliance’ (pro-Syrian); 327 while in the ‘March 14 bloc’ (anti-Syrian), Druze leader, Walid Jumblatt, aligned with Maronite Christians and other religious minorities. 328 Th is division has created fi ssures in the political unity of the Druze, which had, especially during the 1980s, been fairly cohesive in Lebanon.

³²² Al-Marsad—Arab Human Rights Centre in Golan Heights, Parallel Report to the Committee on the Elimination of All Forms of Racial Discrimination on the Occasion of the Consideration of the Fourteenth to Sixteenth Periodic Report of Israel (23 January 2012). ³²³ Hazran (n 309) 464. ³²⁴ Ibid 465. ³²⁵ Secured through the 1989 Ta’if Agreement. ³²⁶ Hazran (n 309) 465. ³²⁷ Al-Hayat, J, ‘From Martyrs to the Living’ Mideast wire.com (1 June 2000) (on fi le with author). ³²⁸ See H Wimmen, ‘Rallying Around the Renegade’ MER Online (27 August 2007): <http://www.

merip.org/mero/mero082707> accessed 1 March 2012.

http://www.merip.org/mero/mero082707

www.Mideastwire.com

Minority Identities in the Middle East: Religious Minorities134

Th e Druze in Israel comprise 9 per cent of the overall 20 per cent Arab popula- tion. Th ere are two distinct practices evident when examining the status of the Druze in Israel. On the one hand, the Druze practice of Taqiyya is especially prominent in their engagement with the state. On the other hand, Israel’s policy of divide and rule is clear in its ‘[c]onstruction of . . . minority identities [“Arabs,” “Druze,” “Bedouin” and “Circassians”] intended . . . to fragment an Arab col- lectivity within Israel and diff erentiate citizens’ rights according to communal affi nities’. 329 Like other religious minority communities in Israel, Druze enjoy ‘offi cial legal status that aff ords them the legal capacity to administer their own religious norms in matters under their jurisdiction’. 330 But unlike other minor- ity religious communities in Israel, a close relationship was forged ‘between the Israeli government and the leadership of the Druze community’ when the state was established. 331 Th is, in turn,

. . . led to Druze male members being conscripted into the Israel Defense Forces. In due course, the Israeli establishment considered the Druze identity as a national identity and not a mere religious attribute, making the Druze community even more distinct from their fellow Palestinian-Arab citizens. On these terms, the Druze community was regarded as the most favored minority in Israel and received full recognition as a separ- ate and independent religious community shortly after the establishment of the State of Israel. Consequently, the Druze religious courts became important political institu- tions controlled entirely by the Druze community, including the process of selecting judges. 332

Th e relationship of the Druze to the state is thus best understood as one con- structed by the perceived loyalty of the Druze to the state itself and as characteris- tic of a survival mechanism of the Druze to align themselves with ruling regimes. Th eir preferential status as a minority in Israel does not, however, entail equal status to Jews. 333 Rather, as the 2011 Concluding Observations of the CESCR noted, some sectors of the Druze community were ‘characterized by low wages, including agriculture and the hotel and restaurant sector’. 334 But there is no doubt that Druze cooperation with the authorities has isolated them from other Israeli Arabs and they have constructed a unique, but not entirely unproblematic, status in Israel.

³²⁹ L Hajjar, ‘Israel’s Interventions Among the Druze: Making Identity Policy’ (1996) 200 Middle East Research 2–6. ³³⁰ MM Karayanni, ‘Th e Separate Nature of the Religious Accommodations for the Palestinian-Arab

Minority in Israel’ (2006) North-western Journal of International Human Rights 41–71, 59. ³³¹ Ibid 62. ³³² Ibid. ³³³ B Hasisi, ‘Police, Politics, and Culture in a Deeply Divided Society’ (2008) North-western

University Journal of Criminal Law and Criminology 1119–46. ³³⁴ Committee on Economic, Social and Cultural Rights, Concluding Observations: Israel (16

December 2011) E/C.12/ISR/CO/3, para 9.

2 Islamic Minorities 135

2.3 Th e Baha’i

Baha’i communities can be found in Egypt, Iran, Iraq, Tunisia, Israel and the Occupied Territories, and Jordan. A small number of Baha’is also live in Bahrain, Kuwait, Lebanon, Libya, Morocco, Oman, Qatar, UAE, and Yemen.

Th e Baha’i religion was founded by Bah á’ u’ll á h (1817–92) and is purportedly one of the youngest of the world’s independent religions. Th e Baha’i movement grew out of Babism, a form of ‘hyper-Shi’ism’ founded in Persia by Mirza Ali Muhammad of Shiraz (1819–50) who taught that a new prophet would follow Mohammed the promised one. Baha’ism is a monotheistic religion founded on three core sets of beliefs—the Unity of God, religion, and humanity. Its follow- ers believe that God reveals his will periodically through divine messengers. Th e Baha’i teachings, that divine revelations continue to unfold in this manner, places the Baha’i faith in contradistinction to the doctrinal teachings of Islam, which argue the fi nality of Muhammad’s revelation. Th is, in part, explains the experi- ence of persecution of the Baha’i community across the Middle East. Baha’is are considered heretical and experience signifi cant discrimination to a greater or lesser extent in most of the countries where they live.

Th e Baha’i faith is not recognized in Afghanistan, Jordan, Egypt, Iran, Iraq, and Kuwait and in these countries public worship is prohibited and private gath- erings policed. In Egypt, 335 Law No 263 (1960) bans Baha’i institutions and community activities, and strips Baha’is of any legal recognition. 336 As the Baha’i faith is not recognized by Shar î’ ah , the government argues that it contradicts public order, a position upheld by the Egypt’s courts, including the Supreme Administrative Court. 337 In Jordan, the Baha’is are not offi cially recognized and, as such, face discriminatory practices particularly in the area of personal status and employment. On birth certifi cates and national identity cards, if a religious status is listed, this is either refl ected as Muslim or left blank, posing problems when it comes to areas of family life including marriage, establishing birth records for children, and access to appropriate courts for personal status issues. Baha’i women registered as Muslims are unable to marry Baha’i men; similarly where children have been recorded as Muslim on birth certifi cates but are Baha’i, they are considered illegitimate. So whilst the Constitution enshrines freedom of religion in accordance with the customs these are made subject to limits based on public order and/or morality. As well, personal status matters, which include reli- gion, marriage, divorce, child custody, and inheritance, are under the exclusive jurisdiction of religious courts; as Baha’i are not recognized and not permitted

³³⁵ Th ere are approximately 2,000 Baha’is who live in Egypt. ³³⁶ UN Human Rights Committee, Concluding Observations: Egypt (28 November 2002) CCPR/

CO/76/EGY. ³³⁷ J Pink, ‘A Post-Qur’ānic Religion Between Apostasy and Public Order: Egyptian Muftis and

Courts on the Legal Status of the Bah ā’ī Faith’ (2003) 10(3) Islamic Law and Society 409–34, 423.

Minority Identities in the Middle East: Religious Minorities136

religious courts, they must petition the courts of one of the recognized religions if they wish a dispute to be heard.

Although the Baha’i in Afghanistan have a lineage extending more than 150 years, civil war and the Taliban have forced many to emigrate. Th ere are approxi- mately 300 Baha’i reported to be living in or near Kabul, and a smaller number are spread elsewhere throughout the country. Th e military invasion of Afghanistan in 2001 and the ostensible removal from power of the Taliban brought about some legal reform. However, the 2004 Constitution was constructively ambiguous in that it protected freedom of religious expression and mandated observation of the UDHR, whilst privileging Islam as the offi cial ‘religion of the state’, under Article 2 and stating that ‘no law can be contrary to the beliefs and provisions of the sacred religion of Islam’ and that ‘the provisions of adherence to the fundamen- tals of the sacred religion of Islam and the regime of the Islamic Republic can- not be amended’. 338 In practice, where the Constitution and penal codes do not address questions such as apostasy or blasphemy, interpretation was left to for- mulations of Islamic law that confl icted with UDHR (or ICCPR) commitments. In addition, in 2007, the General Directorate of Decrees and Fatwas under the Supreme Court ruled that the Baha’i Faith is distinct from Islam and a form of blasphemy 339 and, as a result, ‘[i]t is reported that the small Baha’i community in the country have lived a covert existence since’. 340

Whilst Qatar, Tunisia, 341 and Lebanon do not offi cially recognize Baha’ism, there is no prohibition restricting religious practices in homes. As Morocco does not license or approve religions or religious organizations, the degree to which religious freedom for Baha’is is observed is not uniform but the restrictions are much less invasive than in other states in the Middle East. Similarly, in the UAE and Yemen, no approval or written licence is required for religious groups. In the UAE, a constitutional provision protects religious freedom, but no such protec- tion (or prohibition) is codifi ed in Yemen. In both cases, however, religious prac- tice tends to be limited by enforcing legal and policy restrictions.

At the time of writing, Libya has an interim government. Th e Great Green Charter on Human Rights of the Jamahiriya Era, 342 under the former regime, contained freedom of religion provisions, provided that such practices were not in confl ict with the regime’s perception of security. In Libya, Baha’is, like Hindus

³³⁸ Constitution of Afghanistan (Afghanistan), 3 January 2004, Article 2. ³³⁹ Th e 2007 ruling meant that those who converted to the Baha’is faced the risk of imprisonment

and possibly even the death penalty. As well, it was unclear how marriages would be treated, especially between a Baha’i woman and a Muslim man or whether second-generation Muslims would be con- sidered to have committed blasphemy (although they will not have technically converted). ³⁴⁰ UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the

International Protection Needs of Asylum-Seekers from Afghanistan (17 December 2010) HCR/EG/ AFG/10/04. 19. ³⁴¹ It is reported that there are approximately 200 Baha’i living in Tunisia. Th e government consid-

ers its followers as heretics. ³⁴² Great Green Charter of Human Rights of the Jamahiriyan Era (Libya), 12 June 1988.

2 Islamic Minorities 137

and Buddhists, did not have places of worship but were allowed to practise in their homes.

In its spiritual home in Iran, the Baha’i faith has never been formally recog- nized, and, since its foundation in 1844, its members have experienced inter- mittent persecution. Under the secularization of the Pahlevis’, Baha’is enjoyed a short period of respite, which changed signifi cantly after the revolution in 1979. Recognition of non-Muslim religions were confi ned to those that had dhimmi status which, under Article 13 of the Constitution, included Zoroastrians, Jewish, and Christians excluding the Baha’is, 343 leading Cole to state:

Th e Baha’is experienced civil death under Khomeinism, facing execution if prominent, imprisonment if vocal, and harassment in daily life. Baha’i marriages were redefi ned as prostitution, and those offi cers of the local spiritual assembly who conducted them were redefi ned as pimps. Parents were charged with endangerment of minors for bringing them up as Baha’is, and their children were sometimes confi scated and raised as Muslims. Th ey were fi red from government jobs and expelled from the universities and fi nally even from the cemeteries. No institution over which the Iranian Muslim state had direct control could tolerate Baha’is given that they were civilly dead. 344

In the public domain, Baha’is were ‘branded . . . terrorists and [as] Israel’s fi fth column’. 345 Since the rise of Khomeninism, government policies have been directed to re-narrate Baha’is as a political group ‘created and fostered by British colonialism and Israeli imperialism’. 346 Th eir activities were deemed intended to further ‘Western’ and Israeli agendas. Under this guise, the government charged members of the community with conspiring against the Islamic Republic. Government persecution and discrimination against the Baha’i community, numbering approximately 300,000, continues. Th ey remain unable to access university education without accepting a religious identifi cation as Muslim, are discriminated against in employment, and their property, confi scated during the revolution, has yet to be returned. During the 2009 ‘Green Revolution’, Baha’is were arrested and charged with agitation, accused of instigating the unrest and demands for democratic process orchestrated from outside Iran. Whilst exclu- sion is embedded in the current regime, the debate regarding the place of Iran’s non-recognized minority communities, including Baha’is, was opened in 2008 by the late Grand Ayatollah Hossein-Ali Montazeri, the deposed heir to Ayatollah Khomeini. Before he died, a former student and cleric, Dr Mohsen Kadivar,

³⁴³ Constitution of Iran, Article 13 states: ‘Zoroastrian, Jewish, and Christian Iranians are the only recognized religious minorities, who, within the limits of the law, are free to perform their religious rites and ceremonies, and to act according to their own canon in matters of personal aff airs and reli- gious education.’ ³⁴⁴ J Cole, ‘Th e Baha’i Minority and Nationalism in Contemporary Iran’ in Shatzmiller (n 4) 156. ³⁴⁵ Minority Rights Group International, Seeking Justice and an End to Neglect: Iran’s Minorities

Today (16 February 2011) 7. ³⁴⁶ Cole (n 344).

Minority Identities in the Middle East: Religious Minorities138

posed a series of questions to Montazeri. 347 In response, a series of fatwas were issued by Montazeri, one of which addressed the exclusion of Baha’is where he wrote ‘our Baha’i compatriots are entitled to full citizen rights, like any other Iranian’. 348 Th is statement opened up space for those taking to the streets in the early days of the Green Revolution to challenge assertions about religious recognition for minority groups in Iran. Whilst the Revolution did not succeed in challenging the current regime, ‘since then the debate [concerning the Bahai’i in public life] . . . remains very much alive in academic circles, media debates and the blogosphere’. 349

2.4 Ismailis

Th e Ismailis are the second largest branch of Shi ‛ a Islam, 350 and accept Ism ā‛ī l ibn Ja ‛ far (the Seventh Imam) as the appointed spiritual successor (or Imam) to Ja ‛ far al-S ā diq. 351 In the early twelfth century ce the Ismailis existed in two main branches: the Nizaris and the Tayyibi Must’alians. 352 Th e Tayyibis split into three: Da’udi (the dominant group), the Sulaymani, and ‘Alavi communities. Within our study area, Ismailis live primarily in Afghanistan, Saudi Arabia, Iran, Syria, Yemen, the UAE, and Lebanon.

Saudi Arabia is home to approximately 700,000 Ismailis (Sulaymanis). Th e Saudi government adheres to a particular interpretation of one school of Sunni Islam, prohibiting other forms of public religious expression. Whilst all religious minorities who fall outside of this interpretation of Islam face discrimination in all forms of civil and political life, the Ismaili community is particularly aff ected. Th e government applies strict controls on the building of religious institu- tions, restricts the building of mosques for Ismailis, and has closed down Ismaili mosques/places of worship in al Khobar, Abqaiq, Jubail, Dammam, Al Khafj i, and the Najran region. 353 Ismailis have reported harassment from state authori- ties, with arrests and detention. Since public school education is strictly control- led, religious studies are uniform, and no alternative religious education is off ered to Ismailis or other religious minorities.

³⁴⁷ See M Sahimi, ‘Grand Ayatollah Montazeri’s Fatwa: an Unfair Supreme Leader is Illegitimate’ (12 July 2009) Frontline : <http://www.pbs.org/wgbh/pages/frontline/tehranbureau/2009/07/ grand-ayatollah-montazeris-fatwa.html> accessed 12 March 2012. ³⁴⁸ See, M Sahimi, ‘Grand Ayatollah Hossein Ali Montazeri: 1922–2009’ (21 December 2009)

Frontline : <http://www.pbs.org/wgbh/pages/frontline/tehranbureau/2009/12/grand-ayatollah-hoss ein-ali-montazeri-1922–2009.html> accessed 12 March 2012. ³⁴⁹ Minority Rights Group International (n 345) 8. ³⁵⁰ For an extensive history of the Ismailis, see, F Daftery, Th e Isma’ilis: Th eir History and Doctrines

(2nd edn, Cambridge University Press 2007). ³⁵¹ Th is diff ers from Shi ‛ a Islam’s largest group (the Twelvers) who accept M ū s à al-K āż im, the

younger brother of Ism ā‛ī l, as the true Im ā m. ³⁵² In South Asia, these are, respectively, designated as Khojas and Bohras. ³⁵³ United States Commission on International Religious Freedom, USCIRF Annual Report 2012—

Countries of Particular Concern: Saudi Arabia , 20 March 2012.

http://www.pbs.org/wgbh/pages/frontline/tehranbureau/2009/07/grand-ayatollah-montazeris-fatwa.html

http://www.pbs.org/wgbh/pages/frontline/tehranbureau/2009/12/grand-ayatollah-hossein-ali-montazeri-1922%E2%80%932009.html

2 Islamic Minorities 139

When King Abdullah bin Abd al-’Aziz Al Saud assumed the throne in 2005, he set forth a reform policy in four main areas: women’s rights, freedom of expres- sion, judicial fairness, and religious tolerance. Th ere has been some, albeit lim- ited, success in the fi rst three areas but little progress has been made in the fi nal area, where tension between Sunni and Sh ‛ ia is high and discrimination against the Shi ‛ a remains embedded in society. In 2008, Human Rights Watch reported on the situation of the Ismailis in the Najran area: 354

Offi cial discrimination in Saudi Arabia against Ismailis encompasses government employ- ment, religious practices, and the justice system. Government offi cials exclude Ismailis from decision-making, and publicly disparage their faith. Following the clashes in April 2000, Saudi authorities imprisoned, tortured, and summarily sentenced hundreds of Ismailis, and transferred hundreds of Ismaili government employees outside the region. Underlying discriminatory practices have continued unabated. 355

More recent NGO and governmental reports on the treatment of religious minor- ities in Saudi Arabia suggest that the situation for Ismailis has not improved. A 2009 Human Rights Watch report cited a number of fatwas targeting Ismailis, issued by a member of the Council of Senior Religious Scholars—the highest forum in Saudi for interpreting Islamic law. Th e fatwas characterized Ismailis as rejectionists and set down prohibitions on marriage, association, and prayer. 356 Th e report also detailed the continued harassment of Ismailis based solely on religious affi liation.

Syrian Ismailis adhere to Nisaris, 357 originating in al-Ladhiqiyah Province, and whilst a small community still lives in this area, the greatest number are now concentrated in the area south of Salamiyah, with smaller communities in and around Masyaf and Qadmus in the southern part of the coastal mountain range. Although, in the early part of the nineteenth century, Ismailis were in confl ict with ‘Alawi tribes, 358 under French rule they were recruited into a local military service, Les Troupes Sp é ciales du Levant . Th ere is some controversy as to whether this recruitment came at the expense of the Sunni but what is agreed is that by employing a divide-and-rule policy, not only in its army recruitment, but in all areas of its rule,

Th e French pitted religious and ethnic groups, as well as factions within each group, against each other. Th ey allowed one ethnic or religious group to be strongly represented in one institution, for example, the military’s offi cer corps, while weakening its representation in

³⁵⁴ Th is is a region where clashes between the Ismaili community and the police took place in 2000, which led to a severe crackdown on the community. ³⁵⁵ Human Rights Watch, Th e Ismailis of Najran: Second-class Saudi Citizens (22 September 2008). ³⁵⁶ Human Rights Watch, Denied Dignity: Systematic Discrimination and Hostility toward Saudi

Shia Citizens (3 September 2009). ³⁵⁷ For a history of the Ismailis in Syria during the late nineteenth/early twentieth century, see DD

and NN Lewis, ‘Th e Trials of Syrian Ismailis in the First Decade of the 20th Century’ (1989) 21(2) International Journal of Middle East Studies 215–32. ³⁵⁸ Ibid 216.

Minority Identities in the Middle East: Religious Minorities140

others, such as the parliament. Th e French manipulated Sunni sub-divisions in the same way as other groups. 359

Although a number of Ismailis hold senior government posts in the current Syrian regime, they ‘have been carefully excluded from substantive power’. 360 At the time of writing, it remains unclear how minority groups, like the Ismailis, who have historically been linked to the al-Asad regime, will engage in any post-Asad state.

Conclusion

What emerges from this review is that the place of Islam in how religious minori- ties engage with dominant communities and with state authorities is complex. Certainly the rise of Islamic agendas in the composition and governance of states and state authorities have both radicalized and politicized minority identities. Religious minorities who do not conform to a particular state ideology (very often framed in terms of Islamic formulations of law) are often excluded, marginalized, and, in some cases, persecuted. Authorities in the region have long endeavoured to both deny and make use of religious (as well as ethnic) divisions to maintain (or gain) control. Yet what also emerges from our review is that the way Islamic discourses are engaged in both the foundations and the practice of states in the Middle East, diff er. We suggest that whilst religion intersects with public life in the Middle East in ways that sit uneasily with secular understandings of the role of state; it is emergent self-interests, which underpin the relationship between a state and its adherence to human rights norms, including the protection of reli- gious as well as other minority communities.

³⁵⁹ NE Bou-Nacklie, ‘Les Troupes Sp é ciales: Religious and Ethnic Recruitment, 1916–46’ (1993) 25(4) International Journal of Middle East Studies 645, 647. ³⁶⁰ Minority Rights Group International, World Directory of Minorities and Indigenous

Peoples –Syria-Ismailis (1997).

Minority Identities in the Middle East Ethno-national and Other Minorities

Introduction

While religion and ethnicity remain the primary categories under which we examine minority communities, in this chapter we have further subdivided into sociopolitical groupings and in addition to ethno-national minorities, three additional categories have been added—majoritarian minorities, political minorities, and trapped minorities. Majoritarian majorities are those who are numerically larger but excluded from sites of power, a category that includes the Shi ‛ a in Bahrain for instance. Relative size distinguishes what we refer to as political minorities. Like ‘majoritarian’ groups, political minorities are excluded from power but are also a minority in terms of relative numbers; these include Shi ‛ a in Saudi Arabia and Sunnis in Iran. ‘Trapped’ minorities are distinct from ethnic/national minorities and are defi ned as a segment from a larger group spread across two or more states and marginalized, or as we discuss in the case of Palestinian Israelis, doubly marginalized, 1 subject to hegemonic control by others within these states and, as such, excluded from access to sociopolitical and economic decision-making institutions. In addition to Israeli Arabs, we include Palestinians, Baluchis, and Kurds. Palestinian refugees and exiles have undoubtedly shaped their ‘host’ countries. Similarly, the Kurds are spread across Turkey, Syria, Iran, and Iraq. Th eir desire to exercise some form of self determin- ation in each of these states has brought them into confl ict with all four states, with signifi cant impact in two of our case studies—Syria and Iraq. Finally, we include the Baluchi community, an ethnic and nomadic group that straddles three countries—Afghanistan, Iran, and Pakistan. In their struggle to establish an independent Baluchistan, they have felt the sharp end of respective state actions in each of these host states.

¹ See D Rabinowitz, ‘Th e Palestinian Citizens of Israel, the Concept of Trapped Minority and the Discourse of Transnationalism in Anthropology’ (2001) 24(1) Ethnic and Racial Studies 73–4, 76–7.

Minority Identities in the Middle East: Ethno-national and Minorities142

1 Trapped Minorities

Th e term ‘trapped minority’ was fi rst introduced by an Israeli sociologist when examining the eff ect ‘re-territorialization’ had on the identity and consciousness of Palestinian citizens living within Israel. 2 We engage this concept in a broader arena, and defi ne it as a segment from a larger community spread across two or more states. Trapped minorities are marginalized (or in the case of Palestinian Israelis, doubly marginalized 3 ), subject to hegemonic control of others within these states and excluded from access to sociopolitical and economic decision-making institutions. In addition to Israeli Palestinians, Palestinian refugees and exiles have shaped their ‘host’ countries. Similarly Kurds, spread across Turkey, Syria, Iran, and Iraq, in their quest to exercise some form of self-determination, have come into confl ict with all four states, impacting two of our case studies—Syria and Iraq. We have, therefore, included Palestinians, living outside of the 1967 borders, and Kurds in this category, while also providing insights into a much neglected community, the Baluchis, who also fall within these parameters.

1.1 Palestinians

Identity politics periodically surface in the meta-narrative of the Israeli–Palestinian confl ict. Questions related to the authenticity of Palestinian identity have become part of the Israeli–Palestinian confl ict, with endeavours to exclude ‘Palestinian’ from the identities of those who lay claim to this national identity as but one in a number of attempts at historical revisionism. Th e intent is clear; de-link the peoples from the territory (and, therefore, their self-determination claims) by suggesting an imagination of community.

Debates over just how national identities are constructed have produced long and rich literatures extending beyond the Palestinian case. Th e crafting of a mem- ory of state that attempts to exert hegemonic control over a ‘national’ narrative as part of a larger political project is not unique to Israeli or Palestinian discourses. Yet, what is perhaps unique is that ‘the intertwining of, and the tension between, the Palestinian and Israeli national narratives may have reached a level of inten- sity in Palestine itself, and in American and European public discourse’. 4 In the ‘grafting of modern political Zionism on to Jewish history’, 5 the Zionist political project has been particularly successful in narrating and exporting its particular memory of state. By contrast, Palestinians have never ‘enjoyed such success [and] since the beginning [Palestinian identity] struggled for acceptance and legitimacy

² Ibid 64–85. ³ Ibid 73–4; 76–7. ⁴ R Khalidi, Palestinian Identity: Th e Construction of Modern National Consciousness (Columbia

University Press 1997) 147. ⁵ Ibid.

1 Trapped Minorities 143

in the outside world, and even for recognition of its very existence as a category of being’. 6 Th ere are a number of seminal works that unpack the question on nationalism and national identity broadly and others that specifi cally focus on the Palestinian case; we will not attempt to reproduce these studies here. Yet, the struggle for hegemonic control of the discourse on Palestine is not merely some esoteric debate; it has been specifi cally crafted to undermine Palestinian self-determination claims and to dispossess a people from a territory and, there- fore, it merits some review.

Even within Palestinian scholarship, analysis of the emergence of Palestinian identity tends to focus either on the emergence of a Zionist movement in the early 1900s or on the post-1948 period. Th erefore when turning to the ques- tion of Palestinian identity, anchoring the discussion around the issue of national identity confuses the issue and traps us in a paradigm in which the ‘Palestinians exist not as an independent entity with an independent narrative but only in relation to another entity and another narrative [e.g. that of Israel and the Jewish people]’. 7

Yet, the question of Palestinian identity is, as Khalidi rightly notes, one that should be viewed as straightforward. However, its absorption in the meta-confl ict that is Israel–Palestine has made the story much more complicated:

In the case of national identities of peoples of other Arab countries which came in to being in their modern form in the wake of World War 1, similar processes of the construction of new identities building on elements of old ones as part of a novel synthesis (for this is what we are talking about in the Palestine case and most other cases of the development of new national identities in the modern era) have occasioned relatively little attention, and limited controversy, within these countries or elsewhere. 8

De-linked from the political project, a clinical reading of the history of the forma- tion of a Palestinian identity suggests that it existed in some form, and had been evolving since the mid-nineteenth century. Th e idea that identity can be shaped and formed over time is not new. Th is does not suggest, however, that Palestinian identity is not real, nor does it suggest that it can only be recognized in opposi- tion to the other (in this case, Israeli or Jewish identity). If such a defi nition of what comprises a peoples were accepted, then most national identities would fail to pass such a test. What is clear from the work of Khalidi, Gerber, and others 9 is that, under Ottoman rule, those living in this contested space, ‘understood themselves as living in a territory called Palestine (not Greater Syria). In 1911, the newspaper Filastin (Palestine) began publication in Jaff a. It is evident then

⁶ Ibid. ⁷ Ibid 146. ⁸ Ibid 147. ⁹ See Khalidi (n 4); H Gerber, Remembering and Imagining Palestine: Identity and Nationalism from

the Crusades to the Present (Palgrave Macmillan 2008); LD Lybarger, Identity and Religion in Palestine: Th e Struggle between Islamism and Secularism in the Occupied Territories (Princeton University Press 2007).

Minority Identities in the Middle East: Ethno-national and Minorities144

that Palestine was a geographical location and a site of identity.’ 10 A reading of ‘Palestinian history from the perspective of nationality, rather than nationalism, shows that “the Palestinian people” were anything but a hasty invention’. 11

Yet, as noted, these contrasting narratives on Palestinian identity are part of a larger political project mapped out contemporaneously in a number of ways. Within the 1967 borders, Palestinian citizens of Israel comprise approximately 20 per cent of Israel’s population (numbering 1.3 million persons) and include both Christians and Muslims. Th e systematic and endemic discrimination against the Palestinian community in Israel is well documented. 12 Following the estab- lishment of Israel in 1948, Palestinians were governed under a military regime that severely restricted travel outside their villages (unless with permits) and that began a systematic confi scation of land. As many Palestinians were farmers, this signifi cantly undermined their economic independence.

Th e architecture of exclusion, built into the Israeli socio-legal fabric, continued well after the military government ended in 1966. Although Israeli Arabs were separated from Palestinians living in the West Bank and Gaza, Israeli–Palestinian and Israeli–Arab confl icts that would come to characterize this region had a pro- found eff ect on relations between Israeli-Arabs and Jews. Th e 1967 war, the fi rst intifada (uprising) from 1987–91, the failure of the Oslo Peace Accords to deliver a sustainable road map to peace, the murder of Israeli Prime Minister, Yitzhak Rabin, in 1995, and the beginning of a new chapter of Palestinian resistance in 2000 as well as the uninterrupted expansion of Jewish settlements in the West Bank, Gaza Strip, and East Jerusalem ensured that those writing on the ‘intracta- bility’ of the confl ict would not be proved wrong. 13 For Israeli Arabs, these events also served to politically mobilize the community to demand equal treatment within Israel.

Th e systemic nature of Israeli-Arab marginalization is mapped out in a number of ways across the socio-economic and political landscape in Israel. Th e decision by Israel to construct a separation barrier in 2002, incorporating parts of the West Bank, eff ectively separated Israeli-Arabs from family members who found

¹⁰ L Banko, ‘Th e invention of Palestine’ Jadaliyya <http://www.jadaliyya.com/pages/index/3783/ the-invention-of-the-palestinian > accessed 18 January 2012.

¹¹ Ibid. ¹² See, in particular the reporting of Adalah at <http://www.adalah.org>. ¹³ We have already, albeit briefl y, examined the Israeli–Palestinian and Israeli–Arab confl icts in

Chapter 1, section 2 in the context of the wider regional peace and security questions. Whilst the political and legal situation that has unfolded in Israel and the Occupied Territories is complex and is beyond the scope of this section, Palestinians are subject to Israeli rule that has been jurisdictionally divided into three areas, each of which has a distinct legal status. Th e fi rst is the sovereign territory of Israel, located within the 1949 armistice line (often referred to as the ‘Green line’). Th e second consists of those units/parts of the Occupied Territories that have been de facto annexed (e.g. East Jerusalem, confi scated lands, Jewish settlements, and military installations). Finally, there is the Israeli military administration that was established to govern Palestinians in the West Bank and Gaza. In 2005, Israelis ‘withdrew’ from the Gaza strip and, since August 2005, the Military legal administra- tion (which includes the Military Courts) only applies to citizens of the West Bank.

http://www.jadaliyya.com/pages/index/3783/the-invention-of-the-palestinian

http://www.adalah.org

1 Trapped Minorities 145

themselves on the other side of the wall. Th e discrimination and marginaliza- tion of Israeli-Arabs was confi rmed in a 2003 report of the Orr Commission set up in the wake of the second intifada . 14 A ministerial committee was appointed by the government and charged with overseeing the implementation of the Commission’s recommendations.

Although the government argues a security basis for restrictions placed on its Arab population, an audit of these measures suggests a more complex underpin- ning; one in which race continues to defi ne the concept of citizen in Israel, who is included and excluded from socio-economic and political decision-making insti- tutions. Th e 2003 Citizenship and Entry into Israel Law (Temporary Order) 15 made this distinction clear when the government introduced legislation prevent- ing Palestinian citizens from acquiring citizenship for spouses in the Occupied Territories. Th ere were some amendments to this in 2005, 16 but the discrimina- tory nature of the law remained. In 2007, this was expanded to include citizens and residents from a number of ‘enemy states’, defi ned and listed in the law as Lebanon, Syria, Iran, and Iraq. 17 In 2008, a cabinet decision extended to citizens of Gaza. Although the law was meant to be temporary, the government argued, and a 2006 Israeli High Court ruling concurred, 18 that this was a necessary part of its ‘war on terror’ and of eff orts to curb violent attacks within Israel. Th e Knesset has, therefore, continued to extend its application. A 2011 Report by the CEDAW noted:

. . . its concern that this Law, which suspends the possibility, subject to limited and subjec- tive exceptions, of family reunifi cation, especially in cases of marriages between an Israeli citizen and a person residing in the Occupied Palestinian Territories, has recently been extended for another six months and thus continues to adversely aff ect the marriages and right to family life of Israeli Arab women citizens and Palestinian women from the Occupied Territories. 19

Th e Committee’s concerns echoed earlier remarks by CERD that called on Israel to:

. . . revoke the Citizenship and Entry into Israel Law (Temporary Order), and reconsider its policy with a view to facilitating family reunifi cation on a non-discriminatory basis. Th e State party should ensure that restrictions on family reunifi cation are strictly necessary and limited in scope, and are not applied on the basis of nationality, residency or membership of a particular community. 20

¹⁴ M Dalal (ed), October 2000—Law and Politics before the Or Commission (Adalah 2003). ¹⁵ Th e Nationality and Entry into Israel Law, 31 July 2003. ¹⁶ Th e Nationality and Entry into Israel Law (Amendment), 27 July 2005. ¹⁷ Th e Nationality and Entry into Israel Law (Amendment), 21 March 2007. ¹⁸ See HCJ cases 7052/03, 7102/03, Adalah and others v Th e Minister of the Interior , 14 May 2006. ¹⁹ UN Committee on the Elimination of Discrimination Against Women (CEDAW), Concluding

Observations: Israel (16 December 2011) CEDAW/C/ISR/CO/5, paras 24, 25. ²⁰ UN Committee on the Elimination of Racial Discrimination (CERD), Concluding Observations:

Israel (14 June 2007), CERD/C/ISR/CO/13, para 20.

Minority Identities in the Middle East: Ethno-national and Minorities146

In January 2012, a constitutional legal challenge to the law was rejected. In a six- against-fi ve decision, the Israeli High Court upheld the constitutionality of the 2003 Citizenship and Entry into Israel Law. 21

According to statistics provided in 2008 by the Israeli Ministry of Industry, Trade and Labor, the overall unemployment rate in Israel was 7.3 per cent in 2007, with unemployment amongst Jews at 6.8 per cent. Unemployment amongst Arabs and others was reported as 10.8 per cent. 22 Within the educa- tional system, a 2011 report by Adalah (using Israeli statistical data from 2004) reveals a much lower investment in the government’s spending for education of Israeli Arab students; ‘for the academic year 2000–2001, public investment in Arab schools equalled an average of NIS 534 per Arab student, compared to NIS 1,779 per Jewish student . . . ’. 23

Th e State Education Law (1953), 24 amended in 2000, defi ned the aims and objectives of education strictly in Jewish terms. Although, under Article 2(11), the cultural and linguistic needs of Israeli-Arabs are recognized: ‘this rather weakly worded article is not being implemented, and this objective has not been real- ized. In reality, students in Arab state-run schools receive very little instruction in Palestinian or Arab history, literature and culture, and spend more time learning the Torah than the Qur’an or the New Testament.’ 25

Whilst Israeli-Arab students are taught in Arabic, the curriculum is the same as that of Jewish schools. A 2007 government-approved history textbook, used only in Arab-Israeli schools, did allow for a Palestinian historical narrative to be used but following the election of one of the most right-wing coalitions in the history of the state, the government issued a report, entitled ‘Th e Government of Israel Believes in Education’, which instructs that references to the word ‘Nakba’ be removed from these new Arabic textbooks. 26

At the same time as this report was issued, an amendment to the State Budget Law (1985), referred to as the ‘Nakba Law’, proposed to ban all bodies that receive state funding from spending money on any activity that, inter alia, ‘com- memorates Independence Day or the day of the establishment of the state as a day of mourning’. 27 Th e Bill was passed in 2011, as one of many laws or bills enacted under this newly confi gured Knesset. Since 2009,

²¹ HCJ case 466/07, MK Zahava Galonv v Th e Attorney General, et al. ²² Reported in the UN Committee on Economic, Social and Cultural Rights (CESCR), Concluding

observations: Israel (12 July 2010), E/C.12/ISR/3, paras 30–2. ²³ Th e Legal Centre for Arab Minority Rights in Israel (Adalah), Th e Inequality Report: Th e

Palestinian Arab Minority in Israel (March 2011) 40–2. ²⁴ 7 Laws of the State of Israel (LSI) 113 (5713-1952/53). ²⁵ Submission of Adalah to the UN Committee on the Elimination of Racial Discrimination to

assist it in its consideration of Israel’s 14th to 16th periodic reports to the Committee (October 2010/ January 2011), and in its upcoming review of Israel in February 2012, 28.

²⁶ G Saar, ‘Th e Government of Israel Believes in Education’ (August 2009) (Hebrew): <http:// meyda.education.gov.il/fi les/owl/hebrew/alsederhayom/education_presentation_fi nal_opt.pdf> accessed 10 May 2012.

²⁷ Book of Laws 5745, 15; 5771, 195.

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1 Trapped Minorities 147

. . . a fl ood of discriminatory legislation . . . continue[s] to surface on a near weekly basis, seek[s], inter alia, to dispossess and exclude Arab citizens from the land; turn their citi- zenship from a right into a conditional privilege; undermine the ability of Arab citizens of Israel and their parliamentary representatives to participate in the political life of the country; criminalize political expression or acts that question the Jewish or Zionist nature of the state; and privilege Jewish citizens in the allocation of state resources. It is particu- larly disturbing that some of the legislation appears to be specifi cally designed to preempt, circumvent or overturn Supreme Court decisions providing protection for these rights. 28

Th e marginalization of Israeli Arabs is particularly acute in the political sphere. Although comprising 20 per cent of the overall population, 29 Arab Israelis are represented by only seven members (six men, one woman) in the 120-member parliament, or just over 7 per cent of the seats. Th e recent discriminatory bills and laws introduced have undermined the ability of ‘parliamentary representa- tives to participate in the political life of the country’. 30 Some of these measures have been targeted, directed at specifi c Arab parliamentarians. A series of crimi- nal indictments have also been issued by the Attorney General and the Knesset has instigated punitive measures. 31 Other legal measures have been introduced, which ostensibly apply to all members of the Knesset but, in reality, have been directed at Arab parliamentarians, eg a 2007 piece of legislation banning Israelis who visit ‘enemy states’ from taking seats in the Knesset. Th e government argued that this was to prevent meetings between Arab Knesset members and militant groups or states that were enemies of Israel but Arab parliamentarians argued that such a measure amounted to racial discrimination.

Land confi scations and restrictions placed on land and planning rights have continued despite growth in the Israeli-Arab population. Th ere is a series of laws that is particularly important to construct an architecture of exclusion. Th ese include: the Israel Land Administration (ILA) Law (2009); 32 Amendment (2010) to the Land (Acquisition for Public Purposes) Ordinance (1943); 33 the 2010 Amendment to the Negev Development Authority Law (1991): Individual

²⁸ See Adalah Briefi ng Paper, ‘New Discriminatory Laws and Bills in Israel’ (June 2011) 1. ²⁹ Th is fi gure does not include the Arab population of East Jerusalem or the Golan Heights. From

the Israeli Central Bureau of Statistics, Statistical Abstract of Israel 2009 , No 60, Tables 2.2, 2.8, 2.10. ³⁰ See Adalah (n 23) 1. ³¹ See Adalah Briefi ng Paper, ‘Restrictions on Human Rights Organizations and the Legitimate

Activities of Arab Political Leaders in Israel’ submitted to the European Parliament, Committee on Foreign Aff airs, Sub-Committee on Human Rights (June 2010): <http://www.adalah.org/newslet- ter/eng/jun10/docs/bp.pdf> accessed 1 March 2012. Since the publication of this paper in June 2010, Adalah has submitted petitions to the Supreme Court on behalf of MK Mohammed Barakeh (HCJ case 5754/10, Barakeh v Tel Aviv Magistrate Court, et al , petition withdrawn June 2011) and MK Haneen Zoabi (HCJ case 8148/10, Zoabi v Th e Knesset , case pending, order to show cause issued).

³² Th e Israel Land Administration Law, Amendment No 7 (5769-2009), the Offi cial Gazette: the Book of Laws 2209, 10 August 2009.

³³ Law to Amend the Land (Acquisition for Public Purposes) Ordinance, No 3 (5770-2010), the Offi cial Gazette: the Book of Laws 2228, 15 February 2010.

http://www.adalah.org/newsletter/eng/jun10/docs/bp.pdf

Minority Identities in the Middle East: Ethno-national and Minorities148

settlements; 34 Law to Amend the Cooperative Societies Ordinance (No 8) 5771- 2011; 35 and the Israel Lands Law (Amendment No 3) (2011). 36

Under the Israel Land Administration (ILA) Law, enacted by the Knesset in August 2009, land previously confi scated from Palestinians or land held by the state as ‘absentees’ property’ could be legally sold to private individuals or inves- tors and would not be subject to future restitution claims. Th is measure eff ec- tively dispossessed Palestinian refugees, or those internally displaced, from their land. Th is decision applies to an estimated 800,000 dunams of land and includes refugees’ properties located in cities with mixed Israeli–Palestinian communi- ties. 37 Th e Land Authority Council, which replaced the ILA, manages 93 per cent of the land. It is comprised of 13 members, six of which are members of the Jewish National Fund (JNF).

Under the Land (Acquisition for Public Purposes) Ordinance (1943), the Finance Minister was allowed to confi scate land for ‘public purposes’. Th e Ordinance was widely used to confi scate Palestinian-owned land, often applied in conjunction with other laws 38 related to property. Under a 2010 Amendment to the Ordinance, land that was confi scated under the original Ordinance was confi rmed even if the land was not used for the original confi scation purposes. Th e ordinance, in addition:

. . . allows the state not to use the confi scated land for the original confi scation purpose for 17 years, and prevents landowners from demanding the return of confi scated land not used for the original confi scation purpose if it has been transferred to a third party, or if more than 25 years have elapsed since the confi scation. Th e amendment expands the Finance Minister’s authority to confi scate land for ‘public purposes’, which under the law includes the establishment and development of towns, and allows the Minister to declare new purposes. Th e new law was designed to prevent Arab citizens of Israel from submitting lawsuits to reclaim confi scated land: over 25 years have passed since the confi scation of the vast majority of Palestinian land, and large tracts have been transferred to third parties, including Zionist institutions like the JNF. 39

Th e 2011 Admissions Committees Law makes lawful ‘administration commit- tees’ that oversee development on state land in the Naqab and Galilee area. Th e law gives full discretion to these committees to select (or reject) applicants who apply to live in housing units or to purchase land. Th e criteria used to determine

³⁴ Th e Negev Development Authority Law, Amendment No 4 (5770-2010), the Offi cial Gazette: the Book of Laws 2250, 22 July 2010, 591–3.

³⁵ Israel Lands Law, Amendment No 3 (5771-2011), the Offi cial Gazette: the Book of Laws 2291, 5 April 2011, 754–6.

³⁶ It is worth noting that our review of legislation is not exhaustive. We have highlighted some of the more recent, and impactful bills and laws that aff ect the Palestinian community, living both in and outside of Israel.

³⁷ E.g. Haifa, Lod (Led), Ma’alot-Tarshiha, Nazareth Ilit, Akka (Acre), Ramle and Tel Aviv—Jaff a. ³⁸ Land Acquisition Law (1953) and the Absentees’ Property Law (1950). ³⁹ See Adalah (n 23) 2.

1 Trapped Minorities 149

the suitability of applicants are subjective 40 and suggests that the law may have been enacted to circumvent the 2009 Israeli High Court’s K a ’adan decision, 41 which deemed that the exclusion of Arabs from state land was discriminatory. 42

Th e 2010 Amendment 43 to the Negev Development Authority Law (1991) recognizes individual settlements in the Negev. Th ere are approximately 60 settle- ments in this area, many established without planning permits. Th is amendment provides a tool kit for individual settlements to gain recognition and, therefore, to be entitled to basic services. Th e law vests the Negev Development Authority with the power to recommend allocation of lands for individual settlements to the ILA. Th e Amendment did not address or provide recognition to approxi- mately 100,000 inhabitants of Arab Bedouin villages in the Negev, which remain without the most basic services.

Finally, the 2011 Israel Lands Law (Amendment No 3) 44 prohibits the owner from selling land or renting property to individuals or a party (public or private) for a period of over fi ve years or from bequeathing or transferring private owner- ship rights in Israel to ‘a foreigner, whether in exchange or not in exchange’. 45 Th e term ‘foreigner’ is applied to anyone who is not ‘an Israeli citizen or Israeli resident; or a person who is entitled to immigrate to Israel under the Law of Return, 5710-19502’. 46 Th is law negates the previous approach to the question of ‘absentee’ owners (e.g. Palestinian refugees), whereby Israel undertook a ‘cus- todian’ role, holding the land until a fi nal solution to the confl ict was reached. Under this law, Palestinians are ‘foreigners’ and, despite being original owners, are unable to reclaim their land or property.

A proposal to enact a constitution in Israel replacing the existing basic law and opinio juris , which currently functions as the de facto constitution, ignited controversy when fi rst proposed in 2003. In many ways, the debate surround- ing the constitution embodies a much larger (and unresolved) question as to the nature of the state itself. If the new constitution refl ects a Jewish identity, as many

⁴⁰ Amongst these are whether or not the applicant is deemed suitable to live in the community and whether s/he would contribute to the social and cultural life. As well, the committees allow individual towns to apply specifi c criteria based on the ‘unique characteristics’ of a particular town. See Law to Amend the Cooperative Societies Ordinance, No 8 (5771-2011), the Offi cial Gazette: the Book of Law 2286, 30 March 2011, 683–6, Section 2, 6(c).

⁴¹ HCJ case 6698/95, Ka’adan v the Israel Land Administration , PD 54(1) 258 (2000). ⁴² See commentary on this decision, Haaretz editorial, ‘A Racist Jewish State’ (20 July 2007):

<http://www.haaretz.com/hasen/spages/884358.html> accessed 1 March 2012. ⁴³ Th is follows a 2010 Israeli High Court ruling that allowed for recognition of these settlements.

A petition lodged by Adalah, Bimkom, and the Negev Coexistence Forum in 2006 against what was referred to as the Wine Path Plan failed. Th e Court failed to address two points in the petitioners submission; the question of unequal land distribution and discrimination of the Arab villages (which were not recognized in the plan). See HCJ case 2817/06, Adalah, et al v Th e National Council for Planning and Building, et al (decision delivered 15 June 2010).

⁴⁴ English translation available at: <http://www.adalah.org/upfi les/2011/discriminatory_ laws_2011/Israel_Lands_Law_2011_English.pdf> accessed 10 May 2012.

⁴⁵ Israel Lands Law (n 35). ⁴⁶ Ibid.

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Minority Identities in the Middle East: Ethno-national and Minorities150

proff er, then this may complete the disenfranchisement of Israeli-Arabs from the state.

Th ere are signifi cant socio-economic barriers for Palestinians living outside of 1967 borders: those living under occupation, those living as refugees in neigh- bouring states since 1948 and 1967 and, fi nally, those who form part of a wider Diaspora in other parts of the world. Palestinians under occupation in the West Bank and Gaza constitute a majority (demographically) with representation by the Palestinian National Authority (PNA), a self-governing body run by Fatah in the West Bank, and by Hamas in the Gaza Strip. In reality, these Palestinians remain under the eff ective control of an infrastructure of Israeli military admin- istration. 47 In the West Bank, the Military Court system remains an ‘institutional

⁴⁷ Since 1967, the West Bank and Gaza (until August 2005) have been subject to military govern- ment, with military commanders in each area empowered with ‘governmental, legislative, appointive, and administrative power’ (Israeli Defence Force Military Proclamation 2(3) (on fi le with author)). Following the Camp David accords, all legal and administrative powers were transferred to the newly established Civil Administration (Israeli Defence Force Military Order Number 947 (on fi le with author)). Th ese administrators were given wide powers in relation to all civilian matters, with military commanders retaining responsibility for security and military issues. Th e DOP and the accompany- ing agreements provided for a transfer of civil powers and responsibilities from the Israeli Civilian Authority to the Palestinian Legislative Council in Zones A and B, and in Zone C for those pow- ers and responsibilities not relating to territory. Th e rather intricate nature of the administration of the Occupied Territories is refl ected in the complexity of the applicable laws. Before 1967, the law in the West Bank combined remnants of laws from the Ottoman, British Mandate, and Jordanian periods, as well as the Islamic Shar î’ ah . With the promulgation of Military Order Number 2 of 1967, any pre-existing laws that did not coincide with the orders issued by the Civil Administration were repealed. Th ere have been over 2,500 published military orders issued in the West Bank and the Gaza Strip since 1967. (A number of these orders, especially those related to settlements, remain unpublished.) With the signing of the Oslo II Accords, the PNA was conferred with jurisdiction over the legal aff airs of the West Bank and the Gaza Strip, with some notable exceptions. Annex IV, the Protocol Concerning Legal Aff airs, provided the PNA with jurisdiction over all off ences committed inside Gaza, except those off ences committed inside Jewish settlements, Israeli military installations, and off ences committed by or against Israelis. In the West Bank, the PNA was given jurisdiction over all off ences committed by Palestinians and/or non-Israelis in the areas of the West Bank under Palestinian control. Israel retains jurisdiction over off ences committed inside the West Bank by Israelis, regardless of location, as well as over off ences against Israelis, and off ences aff ecting security and terrorism in Zone B of limited Palestinian control. Th ere is a separate protocol for the coop- eration between Israeli and Palestinian authorities regarding criminal matters, including investiga- tions, restraining orders, summons and questioning of witnesses, transfer of suspects, and execution of court orders, including search warrants. For civil matters, authority inside Gaza and the West Bank was fully transferred to the Palestinian courts and judicial authorities, except for cases against Israelis (or for on-going Israeli business inside Gaza, real property inside Gaza, or where there is consent to Palestinian jurisdiction), and against the State of Israel or its agents. Cooperation between Israeli and Palestinian authorities regarding the service of documents, taking of evidence, and enforcement of orders and judgments, was provided for in an additional protocol. Whilst these arrangements ostensi- bly remain in place for the West Bank, on 6 June 2004, Israel’s cabinet approved a plan for disengage- ment from the Palestinians in the Gaza Strip and ‘northern Samaria’ (consisting of the West Bank Settlements of Ganim, Kadim, Sa-Nur, and Homesh, and all military installations in this area). Th e Knesset endorsed the plan on 25 October 2004, and the disengagement was undertaken in August 2005. From August 2005, the administration, security (intra) and legal authority was transferred to the Palestinian Authority.

1 Trapped Minorities 151

centrepiece of the Israeli state’s apparatus of rule over Palestinians’, 48 whilst in Gaza, Israel continues to exercise control through ground incursions, manage- ment of crucial infrastructure and administrative tasks as well as the ‘use of clo- sure, buff er zones, and airpower’. 49

Th e conditions for Palestinians living within the West Bank and Gaza have been well documented. Th ere are signifi cant bodies of work, from academics, governmental and non-governmental organizations, and UN bodies that detail the eff ect of the occupation on Palestinian civil society; we will not replicate these eff orts here. Some of the seminal issues arising from this literature merit note and are captured in the reporting of the Offi ce for the Coordination of Humanitarian Aff airs—occupied Palestinian territory (OCHA). In a January 2012 report, OCHA noted that a signifi cant portion of land in the West Bank (43 per cent) is occupied by Israeli settlements (150 offi cial settlements and 100 outposts), military bases, and tightly controlled areas including nature reserves and roads that are prohibited to Palestinians. Th e ongoing confi scation of land and housing demolitions has ‘resulted in the shrinking of space available for Palestinians to sustain their livelihoods and develop adequate housing, basic infrastructure and services’ and, in a broader context, has contributed to ‘the ongoing fragmentation of the West Bank, including the isolation of East Jerusalem [and] undermines the right of the Palestinian people to self-determination’. 50 Th is fragmentation includes the construction of ‘[a]n Israeli-controlled separation barrier of around 420 miles [which] exists along and within the West Bank, limiting the move- ment of Palestinians into Israel, separating villages from their own land, trapping thousands in closed enclaves and stunting the development of the Palestinian community inside the West Bank’. 51

Th e level of socio-economic marginalization aff ecting the 1.6 million Palestinians living in Gaza is staggering. According to UN data, unemployment runs at 31 per cent of the eligible work force (47 per cent for youth); 38 per cent live in poverty with 54 per cent described as ‘food insecure’ and 75 per cent aid dependent. Between 50 and 80 million litres of raw and partially treated sewage is dumped into the sea daily making what fi shing waters are available to Gazans hazardous, and 90 per cent of the water from the Gaza aquifer is undrink- able. Successive Israeli governments have argued that the blockade and sanctions imposed on Gaza, which according to the UN has made 33 per cent of Gaza’s farmland and 85 per cent of its fi shing waters inaccessible, are necessary security/

⁴⁸ L Hajjar, Courting Confl ict: Th e Israeli Military Court System in the West Bank and Gaza (University of California Press 2005) 1.

⁴⁹ D Li, ‘Th e Gaza Strip as Laboratory: Notes in the Wake of Disengagement’ (2006) 35(2) Journal of Palestine Studies 38–55, 51.

⁵⁰ See UN Offi ce for the Coordination of Humanitarian Aff airs, occupied Palestinian territory, Th e Humanitarian Impact of Israeli Settlement Policies (January 2012).

⁵¹ Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples 2011: Israel and the Occupied Palestinian Territory (OPT) (6 July 2011).

Minority Identities in the Middle East: Ethno-national and Minorities152

military measures, with ongoing attacks between Israeli forces and Palestinian armed groups. 52

What is clear is that Palestinian civil society is unable to exercise either internal or external self-determination. As Li has argued:

When circumstances prohibit Israel from pushing natives beyond the territory it controls, this dictum produces a corollary: maximum Arabs on minimum land . And within these spaces of confi nement, the challenge of maximum control and minimum responsibility— with its own corollary for the Palestinian Authority (PA) of maximum responsibility and minimum control—emerges. 53

Th e status of the Palestinian refugee community, one of the largest refugee popula- tions in the world, remains unresolved. 54 As outlined, the infrastructure of Israeli land law creates conditions that make it increasingly diffi cult for Palestinians to return home. And whilst Palestinian refugees living in one of the adjoining states may never have lived outside of a refugee status or indeed may have been conferred citizenship by the host state, they remain ‘temporary’ and, in all cases, marginalized from sites of power.

In the region, Palestinian refugee communities living outside the Occupied Territories are primarily located in Jordan, Lebanon, Egypt, Syria, and Iraq. 55 In Jordan, Palestinians comprise the largest refugee population as approximately 1,999,466 Palestinian refugees live primarily in the north-western part of the

⁵² Figures obtained from the UN Offi ce for the Coordination of Humanitarian Aff airs, occupied Palestinian territory, Humanitarian Situation in the Gaza Strip (July 2011).

⁵³ Li (n 49) 39. ⁵⁴ Th ere have been fi ve signifi cant waves of displacement of Palestinians from Palestine. Th e fi rst

occurred during the British mandate period when an estimated 150,000 Palestinians were displaced. It followed the denationalization of thousands of Palestinians under the 1925 Palestine Citizenship Order, and the Palestinian uprisings of the mid-1930s. A second displacement occurred, which is often referred to as the Nakba or Catastrophe. As a result of a UN General Assembly recommenda- tion (Resolution 181(II)) to partition Palestine in 1947 and the subsequent Israeli–Arab war between 750,000–900,000 fl ed to the cease-fi re areas (Gaza and the West Bank) as well as to neighbouring Arab countries, mainly Jordan, Lebanon, and Syria. With the establishment of the Israeli state in 1948, some 150,000 Palestinians were still living inside the areas of Palestine that had become part of Israel. Th e internal strife that ensued (especially in the North of the country) caused an addi- tional 40,000 Palestinian (15 per cent of the population) to be displaced. Th e second Israel–Arab war in 1967 ushered in a fourth signifi cant displacement of Palestinians. Between 350,000–400,000, approximately half of the remaining Palestinian population, were displaced; 95 per cent of this popu- lation fl ed to Jordan. A fi nal (and on-going) displacement of Palestinians is occurring through a host of measures constructed around an entrenched occupation and include deportations, confi scation of land, revocation of residency rights, housing demolition, and the destruction of Palestinian agricul- ture (orchards and farming). For an overview up until 2000, see B Morris, Righteous Victims (Vintage 2001). For reports that engage with human rights concerns of Palestinians, see Adalah at <http:// www.adalah.org > ; Amnesty International at <http://www.amnesty.org >, and Human Rights Watch at <http://www.hrw.org > . For issues specifi c to the West Bank, see Al-Haq at <http://www.alhaq. org > and for issues specifi c to Gaza, see the Palestinian Center for Human Rights at <http://www. pchrgaza.org>, all accessed 1 March 2012.

⁵⁵ We examine the status of Palestinians in Iraq in Chapter 4.

http://www.adalah.org

http://www.hrw.org

http://www.amnesty.org

http://www.alhaq.org

http://www.pchrgaza.org

1 Trapped Minorities 153

state. 56 Of these, 17 per cent reside in one of 13 refugee camps (ten of which are offi cially recognized by the government). Although both Palestinians and Jordanians are predominately Muslims, the relationship between the two com- munities is complex.

Many Palestinians have Jordanian citizenship and have integrated into Jordanian civil society; for Palestinians and indeed the state, the Palestinian– Jordanian relationship is temporary and fragile. Th is must be understood in the context of Jordan’s relationship with Israel, as well as Jordan’s relationship with (and indeed fear of ) the Palestinian community within its borders. Palestinians have long held suspicions that Jordan concluded a secret agreement with Israel regarding the status of the West Bank. As well, the repressive actions taken by King Hussein in 1970 57 were the direct result of persistent fears that such a large and potentially volatile population within Jordan could create social and political instability and threaten state authority. Th e repressive measures taken against the Palestinians when troops were sent to crush the Palestinian guerrilla movement (the fedayeen ) signifi cantly strained relations. Amongst Jordanian nationalists, 58 fears that such a large Palestinian population may disrupt the social and politi- cal balance in Jordan remain and, more recently, these fears have manifested in a series of government measures to limit the power Palestinians can exercise in Jordan.

For Palestinians living in Jordan, the question of citizenship is complex. Jordan’s policies on nationality continue to evolve since the West Bank came under Israeli control in 1967. Whilst it ceased to exercise eff ective control in the West Bank, it claimed sovereignty. At that time, Palestinians who were residing in the ‘East Bank’ of Jordan since 1948 were certifi ed Jordanian citizens. For all others, the situation became more complicated. Although, at that time, Jordanian law con- sidered anyone living in the West or East bank nationals of Jordan and, therefore, with equal rights, the government began applying a scheme in 1983, whereby three tiers of citizens were created—West Bank residents, Palestinians originally from the West Bank who moved East, and original East Bank Jordanians. For West Bank and formally West Bank residents, travel cards were issued to facilitate travel back and forth. Th e creation of the tiered system fostered division between ‘East Banker’ (Trans Jordanian) identity and those outside; something readily exploited by the state and political parties when required.

⁵⁶ Th ey are located mainly in or around Amman, Zarqa, and Irbid. See report issued by United Nation Relief and Works Agency for Palestine Refugees in Th e Near East, Programme Coordination and Support Unit, Statistics (November 2011) 5.

⁵⁷ In May–June 1970, fi erce fi ghting broke out between the Jordanian military and Palestinian fi ghters, which resulted in a decision by King Hussein to attack several of the Palestinian camps by ground and air. Th ere were signifi cant casualties (approximately 400 deaths and over 700 wounded). See Morris (n 54) 373. See also J Schwedler, Faith in Moderation (Cambridge University Press 2006) 43–4.

⁵⁸ See R Fisk, ‘Why is Jordan occupied by Palestinians?’ Th e Independent (22 July 2010).

Minority Identities in the Middle East: Ethno-national and Minorities154

A decision in 1988 to sever ‘administrative and legal’ ties with the West Bank resulted in the loss of Jordanian nationality for those Palestinians living in the West Bank. However, Jordanians of Palestinian West Bank or Jerusalem origins that were living in Jordan’s East Bank, or residing in a third country at the time, were usually able to keep their nationality. Increasingly, however, the state has endeavoured to deprive Palestinians of Jordanian nationality: ‘offi cials cancel, in a haphazard and arbitrary manner, the so-called national number that each Jordanian acquires as proof of Jordanian nationality’ resulting in ‘[h]undreds of thousands of Jordanians of Palestinian origin [who] appear liable to have their national number revoked, including some 200,000 Palestinian-origin Jordanians who returned to Jordan from Kuwait in 1990–91’. 59

Although Palestinians can still obtain Jordanian passports for two or fi ve years, these serve only as a travel document, not proof of nationality. Jordanian nationality is required to work lawfully in the state, to own property, to have access to free health care and education at primary, secondary, and university level. As Human Rights Watch has noted, this has left many Palestinians ‘state- less again’. 60 Th ese measures place additional economic burdens on a popula- tion already socio-economically and politically marginalized as ‘[d]iscrimination against Palestinians in private and state-sector employment remains common and a quota system limits the number of university admissions for Palestinian youth’. Furthermore, ‘Palestinians have been underrepresented in government, and not just due to matters of citizenship’. 61

Th e electoral architecture designed to ensure exclusion of Palestinians from Jordanian political life was erected in 1989, when a system which ‘preserved many of the existing electoral districts’ but distributed seats disproportionately made clear Jordan’s ‘objective of limiting Palestinian parliamentary representa- tion’. 62 A 1993 electoral law changed the voting system from a multi to a single non-transferable vote which, it was argued, restricted the ability of opposition groups to win seats in the elections held that same year. In 1997, Islamist par- ties, and their largely Palestinian constituents, boycotted the elections in pro- test against the skewed apportionment of seats to the monarchy’s rural base of non-Palestinian supporters.

Another electoral reform was introduced in May 2010, prior to the elections in November, which raised the number of MPs from 110 to 120, introduced ‘virtual’ sub-districts and doubled the number of seats guaranteed to women, from six to 12. Although the government argued that the reform provided greater representation, the seats continued to be distributed disproportionately,

⁵⁹ Human Rights Watch, Stateless Again: Palestinian-Origin Jordanians Deprived of their Nationality (2 February 2010) 2.

⁶⁰ Ibid. ⁶¹ Minority Rights Group International, World Directory of Minorities and Indigenous Peoples—

Jordan: Palestinians (2008). ⁶² Schwedler (n 57) 50.

1 Trapped Minorities 155

giving preference to rural areas, historically loyal to the King, over urban areas with large Palestinian populations that have traditionally favoured Islamist can- didates. 63 Two opposition parties (Islamic Action Front and the Wihda Party) boycotted the election. Th e extent of Palestinian marginalization in the politi- cal sphere is evident in the composition of the 55-member House of Notables ( Majlis al-Ayan ) and in the 120-member elected lower house, the Chamber of Deputies ( Majlis al-Nuwwab ), 64 Only 7 of the 55 Senators are Palestinian and of the 120 lower house members, only 15 (or 13 per cent) were of Palestinian origin. 65

As Khalidi noted, the Palestinian question is a ‘source of anxiety to govern- ments and their security authorities . . . [t]his is particularly true of Israel, Jordan, Lebanon, Syria and Egypt, under whose jurisdiction the majority of Palestinians have lived since 1948’. 66 Palestinians living under each of these jurisdictions fi nd themselves inextricably linked to the dynamics of the Israeli–Palestinian and Israeli–Arab confl icts briefl y outlined in Chapter 1.

Th e arrival of refugees, following the establishment of Israel, and the pres- ence of Palestinian political parties, such as the Palestine Liberation Organization (from 1970), as well as Israel’s invasion of Lebanon in 1978 and 1982 ensured that it would remain closely tied to the Arab–Israeli confl ict. Th ere are an esti- mated 300,000 Palestinian refugees living in Lebanon, and the volatile internal landscape has meant that Palestinians displaced after the creation of Israel have continued to face additional internal displacement. Between 1975 and 1990, Palestinian refugees were displaced on at least four occasions: in 1976, when the Tel-al Zaatar, Jisr al-Basha, and Dbayya refugee camps were destroyed in clashes between Christian Lebanese Phalangist and other allied militias and the PLO; in the 1980s, when the Shi ‛ a Amal–Palestinian alliance ended and Amal militias infi ltrated Palestinian refugee camps in Beirut; 67 during the 1978 and 1982 Israeli military interventions in southern Lebanon; and in the massacres at Sabra and Shatilla refugee camps in 1982. 68 In 2006, the 33-day war between the Israeli Army and Hezbollah displaced over one million people, including Palestinian

⁶³ It should be noted that new seats were added in heavily Palestinian areas, but not enough to bring about proportionality.

⁶⁴ Senators in the House of Notables are appointed by the King, whereas members of the lower house are elected.

⁶⁵ Th e number of Palestinian Centres declined from nine to seven and this change was noted in a leaked cable sent by then United States’ Ambassador Edward W Gnehm. See his memo at <http:// wikileaks.org/cable/2003/11/03AMMAN7509.html#> accessed 9 May 2012.

⁶⁶ Khalidi (n 4) 4. ⁶⁷ Th is is often referred to as ‘war of the camps’. ⁶⁸ See L Shahid, ‘Th e Sabra and Shatila Massacres: Eye-witness Reports’ (2002) 32(1) Journal of

Palestine Studies 36–58. See also the offi cial Israel government report: 104 Report of the Commission of Inquiry into the events at the refugee camps in Beirut (8 February 1983) (also referred to as the Kahan Report). Available online at: <http://www.mfa.gov.il/mfa/foreign%20relations/israels%20 foreign%20relations%20since%201947/1982-1984/> accessed 10 December 2012.

http://www.mfa.gov.il/mfa/foreign%20relations/israels%20foreign%20relations%20since%201947/1982-1984/

http://wikileaks.org/cable/2003/11/03AMMAN7509.html#

Minority Identities in the Middle East: Ethno-national and Minorities156

refugees. In 2007, the Nahr el-Bared camp 69 (one of 12 offi cial camps in Lebanon) was destroyed, when the Lebanese army took military actions against the Fatah al-Islam group that had moved into the camp.

Although Palestinians have been largely unwelcome in each of the jurisdictions where they have found refuge since 1948, their position in Lebanon is particu- larly vulnerable where they:

. . . live in appalling social and economic conditions. 2011 saw no improvement in their access to the labor market, despite a labor law amendment in 2010 that was supposed to ease such access. Th e main reason was the government’s failure to implement the amend- ment. Lebanese laws and decrees still bar Palestinians from working in at least 25 pro- fessions requiring syndicate membership, including law, medicine, and engineering. Palestinian refugees are still subject to a discriminatory law introduced in 2001 preventing them from registering property. 70

Th e situation for Palestinians who fl ed to Syria 71 in 1948 is somewhat unique. As one commentator noted, ‘from the very beginning the Syrian government’s approach to the Palestinian refugee infl ux was quite diff erent from that of the other Arab host states’. 72 From 1949 onwards, the Syrian government began to issue a series of laws facilitating the inclusion of Palestinians in both civil and political life in Syria. 73 One of the most critical was Law No 260 of 1956, which stated that: ‘Palestinians residing in Syria as of the date of the publication of this law are to be considered as originally Syrian in all things covered by the law and legally valid regulations connected with the right to employment, commerce, and national service, while preserving their original nationality.’ 74

⁶⁹ Over 27,000 Palestinians were displaced from the Camp and it was not until 2010 that the fi rst series of houses were completed, which will accommodate approximately 317 families. According to Human Rights Watch, 8,000 Palestinians remain displaced to date.

⁷⁰ Human Rights Watch, World Report 2012: Lebanon (22 January 2012) 2. ⁷¹ Whilst this section is dealing with Palestinian Refugees in Syria, it is worth noting that dur-

ing the 1967 Arab–Israeli War, Israel occupied the Syrian Arab Golan Heights. Prior to 1967, the population of Golan was 138,000 people in over 312 towns and villages; 131,000 fl ed to Syria after the occupation. To date, only fi ve Syrian villages remain with approximately 20,000 inhabitants. In 1981, under the Golan Heights Law, Israel extended Israeli law and administration to the Golan Heights, eff ectively annexing the territory of Golan. For this reason, Israel considers this territory as annexed and not occupied; a claim that has been rejected by the Security Council (resolution 497 of 1981) and the General Assembly (resolution 63/99) as well as the Syrian Arab Republic. For those living in the remaining Syrian villages, according to a report of the Special Committee to Investigate Israeli Practices Aff ecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories (A/63/401), there has been a ‘grave deterioration of the human rights situa- tion in the occupied Syrian Golan’.

⁷² L Brand, ‘Palestinians in Syria: Th e Politics of Integration’ (1988) 42(4) Middle East Journal 621–38, 622.

⁷³ Th is included exemption from residency requirements for Syrian Civil Service, exemption from a law that prohibited non-Syrians from practising the profession of writing (letters, petitions, etc) and in 1963, Law no 1311 provided Palestinians with travel documents.

⁷⁴ Laws cited in this section are on fi le with author. Some are available in English translation through Badil Resource Centre for Residency and Refugee Rights at <http://www.badil.org > accessed 1 March 2012.

http://www.badil.org

1 Trapped Minorities 157

Unlike in Lebanon or Transjordanan, where Palestinians were perceived as a threat to the economy and social structures, there was relatively little unemploy- ment in Syria. Th e numbers of Palestinian refugees that fl ed to Syria was also low compared to Jordan and Lebanon. United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) reported just over 82,000 refugees registered in 1950, compared to 127,000 and 506,000 for Lebanon and Jordan, respectively. 75 Th e relatively low numbers combined with a healthy economy meant that Palestinians were readily absorbed into the Syrian economic and political life, achieving high-ranking positions in labour unions, the army, 76 and in the Ba ‛ thist party.

Th ere are currently approximately 500,000 77 Palestinian refugees in Syria, of which 149,822 live in one of nine offi cial camps. 78 An estimated 100,000 refugees live in Yarmouk camp, 79 established in 1957 and one of the unoffi cial Palestinian camps located just south of Damascus. 80

How the uprisings and demand for political reform in Syria, which began in 2011, will impact Palestinians is uncertain. Th e relationship between Palestinians and Syrian authorities has been stronger than in other Arab host states, but that previously close alliance 81 between the Palestinians and the Ba ‛ thists may already be changing. 82

Palestinian refugees in Egypt arrived in three diff erent periods—pre-1948, 1948, and in 1967. Information regarding Palestinians living in Egypt is limited. Unlike other states, UNRWA do not operate in Egypt, so the exact numbers of Palestinians who arrived as refugees were not documented, though one esti- mate suggests that between 1948 and 1960, there were approximately 15,500

⁷⁵ Figures obtained from the UN Relief and Work Agency (UNRWA) at: <http://www.unrwa.org/ userfi les/reg-ref(2).pdf> accessed 30 January 2012.

⁷⁶ Unlike other Arab states, Palestinians were drafted into the army in Syria. ⁷⁷ At the time of writing, UNHCR reported that 460 Iraqi Palestinian refugees remained in Syria.

See UN High Commissioner for Refugees, Syria: Fact Sheet (August 2010). ⁷⁸ Th ere are an additional three unoffi cial camps, of which Yarmouk camp is the largest. ⁷⁹ Th is is often referred to as the Palestine Camp. ⁸⁰ Th e camp is not one of the offi cial UNRWA refugee camps and has had to rely on international

aid donors for support. ⁸¹ As one commentator noted, the rise to prominence of some Palestinians indicates that some may

have ‘developed a stake in the continuation of the regime’; see Brand (n 72) 636. ⁸² Th ere are a number of articles and postings both by and on Palestinian activists in Syria that

are available through Jadaliyya at: <http://www.jadaliyya.com/pages/index/Syria > accessed 1 March 2012. As well, UNRWA has reported that clashes between the government and opposition have aff ected Palestinians living in Yarmouk, Hama, and Latakia. According to the UNRWA, approxi- mately 10,000 people were displaced from the Latakia’s al-Ramel district in 2011; earlier violent inci- dents had aff ected Yarmouk (June) and Hama (July). For general information on the UNRWA camps in Syria, see <http://www.unrwa.org> accessed 1 March 2012. For attacks on camps, see BBC , ‘Syria unrest: Palestinian refugees fl ee camp, says UN’ (15 August 2011) available at: <http://www.bbc. co.uk/news/world-middle-east-14533967 > accessed 30 January 2012. Also, on the Latakia incident, see op-ed, Y Rabah, ‘Why the Palestinian camp in Latakia?’ Al-Hayat al-Jadidah (18 August 2011) available at <http://alhayat-j.com/newsite/details.php?opt=1&id=146029&cid=2322 > accessed 30 January 2012.

http://www.unrwa.org/userfiles/reg-ref(2).pdf

http://www.jadaliyya.com/pages/index/Syria

http://www.unrwa.org

http://www.bbc.co.uk/news/world-middle-east-14533967

http://alhayat-j.com/newsite/details.php?opt=1&id=146029&cid=2322

Minority Identities in the Middle East: Ethno-national and Minorities158

Palestinians in Egypt. 83 In her examination of Palestinians living in Egypt since 1948, El-Abed argues that, historically, the policy of the Egyptian state was to ‘maintain . . . a strict separation between Egypt proper and the Gaza strip’. 84 Th is segregationist policy ‘safeguarded’ 85 a distinct Palestinian identity, was applied during the events of 1948, and during the Egyptian administration of the Gaza strip. Th is policy mapped out in diff erent ways and, depending on the period, with varying levels of severity, including in the (re)settlement practices in 1948 and, thereafter, 86 but also in residency policies, restrictions on education and employment, and the curtailment of Palestinian social organizations and their activities.

Th e regulations and laws introduced under Nassar’s pan-Arabist policy and intended to integrate Palestinians into Egyptian society were dismantled between 1978 and 1982 under Sadat. 87 Th ese changes refl ected growing tensions between the PLO and the government, but also marked a policy shift under Sadat, who abandoned Nassar’s pan-Arabist policies, to one centred on putting Egypt fi rst, justifying his participation in Camp David negotiations with the Israelis. Under new regulations introduced, Palestinians living in Egypt were to be consid- ered ‘foreigners’, save for those working for the PLO. Many Palestinians were stripped of their right to live in Egypt unless they were married to Egyptian citizens, were enrolled in school, or had business engagements in the state. A change to the Nationality law in 2004 conferred citizenship on all children of mixed Egyptian–Palestinian parents born after the law was enacted, 88 and, in the post-Mubarak government, an additional amendment widened this to include all children, not just those born after 2004. 89 Whether this signals a willing- ness of the newly confi gured Egyptian government to recalibrate the relationship between Palestinians and the state remains uncertain.

⁸³ Brand (n 72) 46. ⁸⁴ O El-Abed, Unprotected: Palestinians in Egypt since 1948 (Institute of Palestine Studies 2009)

19. ⁸⁵ Ibid 41. ⁸⁶ After the 1948 war, Egypt’s King Farouk began to dismantle Palestinian camps in Egypt and

made it increasingly diffi cult for Palestinians to remain. Th is policy changed under Nasser’s Pan Arabist policies and, from 1952–78, Nasser facilitated Palestinian integration into Egypt. Th is included the ability of Palestinians to own property, to study and to work in Egypt. However, the increasing tensions between the Egyptian government and the Palestinian Liberation Organization, the signing of the Camp David Peace Accord with Israel and the 1978 assassination of the Egyptian Cultural Minister, Ysuif al-Sibai, in Cyprus by Abu Nidal (a Palestinian splinter group) led to a reversal of Nasser’s policies.

⁸⁷ Th is was undertaken during Anwar Sadat’s Presidency and came in the wake of the Camp David Accords (1978) and the signing of the Egyptian–Israeli Peace Treaty (1979).

⁸⁸ Decree No 12025 of the Year 2004 Concerning Certain Provisions Enforcing Law No 154 of the Year 2004 on Amendment of Certain Provisions of Law No 26 of the Year 1975 Concerning the Egyptian Nationality (Egypt), 12025, 25 July 2004.

⁸⁹ Decree No 1231, approved May 2011.

1 Trapped Minorities 159

1.2 Baluchi

Th e Baluchi are a border ethnic and nomadic group, straddling Afghanistan, Iran, and Pakistan. Th e Baluchi language is distinct and spoken by most mem- bers, although there is a small Baluchi community in Afghanistan that speaks Brahui. Th e largest population of Baluchis lives in Pakistan, followed by Iran and Afghanistan. 90 Th e community has a strong ethnic identity. In the past Baluchis engaged the language of self-determination to call for greater autonomy 91 and, in some cases, for secession and the establishment of an independent Baluchistan. Such calls have been met with repressive measures in each of the states that have, in turn, dampened separatist elements of the community. 92 In Afghanistan, the community is estimated to comprise 2 per cent of the population, residing mainly in the Helmand and Faryab Provinces. Under Article 22 of the 2004 Constitution, discrimination and distinction between citizens is prohibited. Article 4 specifi es that Afghanistan is a nation composed of all individuals who possess Afghan citizenship and specifi cally recognizes Baluchis as an ethnic minority. Article 16(2) mandates that in areas where a majority speak Baluchi, it would be rec- ognized as the offi cial language, 93 and Article 43(2) provides for teaching in that language. However, Afghanistan’s protracted confl ict continues. Th e actors may have changed, but the country remains unstable and the continuing level of vio- lence has caused internal displacement aff ecting Baluchis, especially in Registan (desert area) between Helmand and Kandahar. 94

Th e disputed elections of 12 June 2009 in Iran ushered in a series of repressive state measures resulting in a signifi cant increase in allegations of human rights abuses. 95 Whilst these aff ected all parts of Irani civil society, minority communities

⁹⁰ Much smaller communities of Baluchis live in other Persian Gulf states and in Turkmenistan. For the status of these communities, see, in particular, Committee on the Elimination of Racial Discrimination, Concluding Observations: Turkmenistan (3 March 2007) CERD/C/TKM/CO/5, para 12. In the Gulf States, see B Nicolini, ‘Th e Baluch Role in the Persian Gulf During the Nineteenth and Twentieth Centuries’ (2007) 27(2) Comparative Studies of South Asia, Africa and the Middle East 384–96.

⁹¹ Th e most notable of the armed groups was the Baluch People’s Liberation Front (PLF), which was active in the 1970s and had camps mainly in the South of Afghanistan.

⁹² In Pakistan, the Balochistan Liberation Army remains active. ⁹³ It states: ‘In areas where the majority of the people speak in any one of Uzbeki, Turkmani,

Pachaie, Nuristani, Baluchi or Pamiri languages, any of the aforementioned language, in addition to Pashto and Dari, shall be the third offi cial language, the usage of which shall be regulated by law.’

⁹⁴ See Internal Displacement Monitoring Centre, ‘Afghanistan: Increasing hardship and limited support for growing displaced population’ (28 October 2008) 74. Although these fi gures are dated, as no more recent data is available, the protracted violence in Afghanistan, especially in and around Baluchi areas suggests that displacement is likely to continue.

⁹⁵ See reporting from Human Rights Watch at <http://www.hrw.org > ; Amnesty International at <http://www.amnesty.org > accessed 1 March 2012; as well as various UN reports, including: UN Human Rights Council, Interim Report of the Secretary-General on the Situation of Human Rights in Iran (14 March 2011); UN Human Rights Committee, Concluding observations: Islamic Republic of Iran (29 November 2011) CCPR/C/IRN/CO/3.

http://www.hrw.org

http://www.amnesty.org

Minority Identities in the Middle East: Ethno-national and Minorities160

and Muslims who dissent or express views perceived as threatening the legitimacy of the government have been at the sharp end of these policies. A 2011 Amnesty International report notes:

Iran’s ethnic minority communities, including Ahwazi Arabs, Azerbaijanis, Baluch, Kurds and Turkmen, suff ered ongoing systematic discrimination in law and practice. Th e use of minority languages in schools and government offi ces continued to be prohibited. Th ose who campaigned for greater political participation or recognition of minorities’ economic, social and cultural rights faced systematic threats, arrest and imprisonment. 96

A majority of the Balochi community (transliterated diff erently from Farsi) in Iran lives in the Sistan-Balochistan province. A sustained repressive campaign by the government resulted in ‘disproportionate poverty rates, low standards of living, and linguistic and cultural repression’. 97 Such measures have, in part, been in response to the operations of a pro-Balochi insurgency movement, known as Jondallah. Jondallah alleged to have been responsible for a number of suicide bombings as well as targeted killings of government offi cials. Th ese operations have, in turn, led to a government response ‘especially deadly for Baluch civil- ians’; including arbitrary arrests and detentions, extrajudicial killings and a mili- tarization of the province. 98 According to print media, an attack on a mosque in Chabahar (in the Southeast of Iran) was claimed by the Jondallah. In response, the government executed 11 Balochi prisoners. 99

1.3 Kurds

Th e Kurds, said to number between 25 and 28 million, 100 are located in the mountainous areas where Turkey, Iran, Iraq, and Syria meet. While they are demographic majorities in the territorial regions they occupy, they have, histori- cally, been marginalized, excluded from socio-economic and political power and, thus, exist as minorities within these states. Th e desire for an independent state or at least an autonomous region has underpinned a series of revolts that have taken place since World War I. Th e territory referred to as Kurdistan here was divided between the Ottoman and Persian Empires prior to this war. In its aftermath, the territory was carved between fi ve states—Turkey, Iran, Iraq, Syria, and the former Soviet Union (now, mostly in Armenia and Azerbaijan)—listed roughly in order

⁹⁶ Amnesty International, Annual Report 2011: Iran (13 May 2011). ⁹⁷ Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples 2011:

Iran (6 July 2011). Also see, International Federation for Human Rights, Th e Hidden Side of Iran: Discrimination against Ethnic and Religious Minorities 545a (12 October 2010).

⁹⁸ International Federation for Human Rights (n 97) 17. ⁹⁹ See, I Black, ‘Iran executes 11 linked to Sunni rebel group: dawn hangings after Jundollah rebels

claim responsibility for bombing of Shia mosque’ Th e Guardian (20 December 2010). ¹⁰⁰ Th ere are no exact fi gures for the Kurds; the estimates provided by the Kurds themselves may be

exaggerated whilst the numbers provided by respective state parties are (politically) often reduced (or not acknowledged at all).

1 Trapped Minorities 161

of the size of Kurdish populations. Th e Kurds are largely but not exclusively Sunni Muslims and are ethnically distinct from Arabs or Turks. Th eir geographi- cal spread and division is refl ected in linguistic, ideological, tribal, and political diversity, which has had a historical impact on pan-Kurdish unity.

Th e complaints of domination by others over Kurds are made explicit in some key documents. One of these is a communiqu é written by the American Legation in Baghdad, in 1945, to the United States Secretary of State in Washington. Entitled the ‘Kurdish Nationalists Protest Against Ill-Treatment at the Hands of the Iraqi Government’, the document identifi es the ‘basic grievance’ of the Kurdish complaint as being ‘that they do not want to be a minority and that in general they dislike, distrust, and hold in contempt the Arab government in Baghdad’. 101 Kurdish grievances and persecution extended to Iraq, where the con- temporary history of ethnic cleansing and use of poisonous gas against Kurdish civilians under Saddam Hussein in Halabja echoed earlier massacres that the community experienced in Iran on the day of the Allied victory. 102

As Little notes, declassifi ed documents suggest three post-UN historical junc- tures where Kurdish nationalist aspirations were nurtured for Western strategic purposes:

. . . fi rst, the secret encouragement provided by Washington to Kurds opposed to Iraq’s Abdul Karim Qassim, who tilted toward Moscow after seizing power in 1958; second, the covert action launched by Richard Nixon and Henry Kissinger in Iraqi Kurdistan after Saddam Hussein allied himself with the USSR in 1972; and third, the half-hearted U.S. attempts to foment regime change in Iraq in the early 1990s. In each case, the U.S. govern- ment stirred up anti-Arab resentments among the Kurds, helped ignite an insurrection, and then pulled the plug when events spiralled out of control. 103

As a result, Kurds hold the West historically culpable for their current plight, which was generated from the applied decision at the Peace Conference at the end of World War I to divide the Kurdish cities between Turkey, Iran, Iraq, and

¹⁰¹ WD Moreland, Charge d’Aff aires, letter addressed to US Secretary of State, Washington, ‘Kurdish Nationalists Protect Against Ill-Treatment at the Hands of the Iraqi Government’ American Legation (22 March 1945) Baghdad (Foreign Service of the USA) Document No 674 as quoted in FD Andrews (ed), Th e Lost Peoples of the Middle East (Documentary Publications 1982) 12. ¹⁰² See WD Moreland, Charge d’Aff aires ad interim, letter to the Secretary of State, Washington

(6 September 1945) Baghdad Restricted No 892, which includes three enclosures: (a) ‘Th e Kurdish Massacre on the Day of Allied Victory’ compiled by the Kurdish National League of Iran; (b) Document from Chiefs of Kurdish tribes in Iran; and (c) Memorandum from Kurdish Hope Society. Documents reproduced in Andrews (n 101) 38–47. Th ere is evidence of the British support for the Kurdish massacre, see especially ‘Memorandum of Conversation’ between AH Tandy (First Secretary, British Embassy) and Mr Merriam, Chief of Division Near Eastern Aff airs (7 September 1945); and Letter written by RB Memminger, Second Secretary of Legation, to the Secretary of State, Washington (13 September 1945) transmitting the previous memo. Both reproduced Andrews (n 101) 48–50 and 50–51, respectively. ¹⁰³ D Little, ‘Th e United States and the Kurds: A Cold War Story’ (2010) 12(4) Journal of Cold War

Studies 63–98.

Minority Identities in the Middle East: Ethno-national and Minorities162

Syria. 104 A memo in 1945, attached to a restricted document sent by the America Legation to the Secretary of State in Washington, already stated:

. . . Since that day . . . the bloody revolts did not cease between the Kurdish nation and those Governments as they did not follow the right path in administrating the country but they judged on iniquity and tyranny, dispersed and humiliated the nation, and took all possible measures to silence the voice of the wretched Kurds who were claiming their stolen rights and liberty. 105

Th e Memo is prophetic in terms of the primary cause of their betrayal, as relevant in 1945 as today:

. . . It is most regrettable that some States who have their interests in the Middle East were supporting the said four Governments while they should have aided the weak nations after they have proclaimed democratic judgement and declared themselves as its defenders. 106

Although, demographically, the Kurdish population in Turkey and Iran exceeds the population of Kurds in Iraq, their critical mass in northern Iraq has allowed an exercise of greater and somewhat disproportionate political weight. Th e carving out of Iraq from the former Ottoman provinces of Mosul, Baghdad, and Basra in the Sykes–Picot Agreement is the colonial backdrop to what became a constant state of rebellion by Iraqi Kurds. Th eir repression under Saddam Hussein’s regime is well documented 107 and will not be revisited here. Th is historical backdrop of brutal victimization under the Ba ‛ thist regime informs and is likely to continue to inform their relations with other state actors internally and externally.

Th e Kurdish question became more prominent since the end of the 1991 Gulf War, where a de facto state of Kurdistan was created in northern Iraq, 108 and the more recent 2003 invasion of Iraq has signifi cantly accelerated this state-building process. Kurdish territorial ambitions remain entangled with the larger ques- tion on national sovereignty in Iraq and the extent to which the United States remains a part of the Iraqi socio-economic fabric post-withdrawal. Here the divi- sion between the two Kurdish parties who support a broader security partnership with the United States and other Iraqi parties that prefer an ‘instruction’ mandate is evident. Th e territorial aspiration of the Kurds is clear—to include as much of the ‘disputed territories’ as possible into the autonomous Kurdish domain

¹⁰⁴ See Memorandum from Kurdish Hope Society (25 August 1945) sent as Enclosure 2 to Despatch No 892 of the American Legation in Baghdad to the Secretary of State, Washington, as reproduced in Andrews (n 101) 45–7. ¹⁰⁵ Ibid 45. ¹⁰⁶ Ibid. ¹⁰⁷ Particularly, the Anfal campaigns of 1987–88 and the use of chemical weapons in Halabja in

1988, as well as the forced displacement and resettlement of Kurds. ¹⁰⁸ In March of 1991, in the wake of the Gulf War and the failure of a Kurdish uprising (in large

part based on the assumption of US support that did not materialize), the US set up a no-fl y zone over northern Iraq. Th is allowed the Kurds to develop what would be a de facto autonomous regime in the North. Th is was followed in April 1991 by UN Security Council resolution 688, which acknowl- edged and called for the end of the repression of Kurdish-populated areas in Iraq.

1 Trapped Minorities 163

in the north. Th is territory comprises not just the area around Kirkuk, but cuts across the state from Khanaqin in the east to Sinjar in the west. Yet, the poten- tial for further fragmentation and confl ict also exists alongside a Sunni–Shi ‛ a divide within Iraq. Such fi ssures are part of the Iraqi political landscape and, combined with the expansive federalism possibilities embedded in the 2005 Iraqi Constitution, demands by other ethno-religious groups for autonomy may arise, with the potential for greater territorial fragmentation and further intra-state confl ict.

Th e Kurdish movements in both Iran and Syria are less developed than in Iraq. Th e historiography of Kurds in Iran is telling. 109 Whilst Kurds had their earliest period of self-rule in Iran (1941–46) and established the only, albeit short-lived, Kurdish state in 1946, 110 endeavours by Kurds to mobilize politi- cally have consistently failed. Successive regimes have applied brutal repressive measures to keep Kurdish separatist tendencies in check. Kurdish leader, Ismail Agha Simko, part of a major Kurdish revolt in the 1920s, was assassinated by the authorities in 1930. 111 Th e revolution provided some brief hope for Kurdish internal self-determination. However, a speech by the Ayatollah Khomeini in 1979 suggested that the approach to Iran’s minority communities would be to dampen down rather than recognize distinctions. Khomeini stated: ‘Sometimes the word minorities is used to refer to people such as Kurds, Lurs, Turks, Persians, Baluchis, and such. Th ese people should not be called minorities because this term assumes there is a diff erence between these brothers.’ 112

As Romano argues, Khomeini applied a ‘cultural toolkit’ 113 to frame what was essentially a nationalist policy that would not tolerate ‘a competing force [in the form of Kurdish nationalism] within the territory it controlled’. 114 Th e Kurds and Khomeini were on a collision course before the Iran–Iraq war; this acceler- ated when the Kurdistan Democratic Party of Iran (KDPI) accepted supplies and armaments from Baghdad, which they used against Irani troops in Irani Kurdistan. During this period, divisions appeared within the Kurdish move- ment that made the push to establish an independent Kurdish province more diffi cult. Tehran reasserted control in the region and the splinters between vari- ous Kurdish groups that occurred during this period left the Kurdish nationalist

¹⁰⁹ Two particularly good pieces specifi cally on Kurds in Iran are: D Romano, Th e Kurdish National Movement: Opportunity, Mobilization and Identity (Cambridge University Press 2006) 222–47 and F Koohi-Kamali, Th e Political Development of Kurds in Iran; Pastoral Nationalism (Palgrave Macmillan 2003). ¹¹⁰ Th e state initially had Soviet backing but after the Soviets withdrew, the state was crushed

by Iran’s central government and its president Qazi Muhammad was hanged in March 1947. See W Eagleton, Th e Kurdish Republic of 1946 (Oxford University Press 1963). ¹¹¹ M van Bruinessen, ‘Kurdish Tribes and the State of Iran: Th e Case of Simko’s Revolt’ in R Tapper

(ed), Th e Confl ict of Tribe and State in Iran and Afghanistan (Croom Helm 1983) 379–93. ¹¹² Ayatollah Khomeini, Radio Tehran , 17 December 1979, cited in D McDowall, A Modern History

of the Kurds (IB Taurus 1997) 271. ¹¹³ Romano (n 109) 235. ¹¹⁴ Ibid 236.

Minority Identities in the Middle East: Ethno-national and Minorities164

movement ‘quite fragmented from the 1980s onward’. 115 Th e government assas- sinated the leader of KDPI in 1989 and his successor in 1992. Whilst these actions, and the stationing of a signifi cant military force in Kurdistan has damp- ened guerrilla activity in the area, Romano observed that repressive state actions ‘seem to have signifi cantly heightened politicization of Kurdish ethnicity over the years’. 116

Th ere are currently estimated to be between 3 and 8 million Kurds in Iran. Whilst a majority of these are Sunni, there is a signifi cant minority of Shi ‛ a and Sufi as well. In a 2010 report on the status of ethnic and religious minorities in Iran, FIDH summarized the situation for Kurds in Iran, 117 noting:

Kurds have been denied, both before and after the 1979 revolution, their political, eco- nomic and cultural rights, including their right to use their own language. Since 1979, their right to freedom of religion has also been violated . . . Th e Kurdish regions are extremely poor with little government investment . . . Th e denial of the right to learn and practise the mother tongue is prevalent also in the Kurdish regions . . . Th e Selection Law has been frequently used to deny employment to Kurds in particular in the state sector, including in the Education Ministry as teachers; whereas many Kurds do not conform to the obligatory ‘belief in and practical adherence’ to the principle of Velayat-e Faqih, they are barred from standing for parliamentary elections. 118

Within the region, Syria has the smallest number of Kurds, estimated at approxi- mately one million, with most having crossed the border from Turkey in the period from 1920–50, settling in the fertile al-Hasakah province. Although the largest minority population in terms of demographics, Kurds are not concentrated in a particular area; rather, they are living primarily in three non-contiguous regions. Like their counterparts across the border most Syrian Kurds are Sunni Muslim, with signifi cant numbers of Kurdish Shiites, Christians, ‘Alawi, and adherents of other smaller sects.

For most of the period of rule under the Asad regimes, the Kurds have not been politically active. Th at is not to say that there has not been periodic unrest, rather that, under both Hafez Asad and his son Bashir, state repressive measures ensured, until recently at least, that this political unrest was minimized. Th ese measures have limited the ability for Kurds to associate but have also sought to excise the expression of Kurdish identity from the public sphere. For example, Kurds were not able to name their children with Kurdish names and Kurdish cultural centres, bookshops, and associations were banned. Many Kurds that have lived in Syria have been essentially ‘stateless’, having had their citizenship revoked in 1962. 119

¹¹⁵ Ibid 239. ¹¹⁶ Ibid 241. ¹¹⁷ Th ese views have been echoed by a number of UN bodies as well as other NGOs. See Amnesty

International, Annual Report 2011: Iran (2011). ¹¹⁸ International Federation for Human Rights, Th e Hidden Side of Iran: Discrimination Against

Ethnic and Religious Minorities 545a (12 October 2010) 17. ¹¹⁹ Human Rights Watch, World Report 2011: Syria (24 January 2011).

2 Ethnic/National Minorities 165

Th is decision aff ected 120,000 Kurds in the al-Hasakah province but that fi gure, currently, is approximately 300,000. Often referred to as al-ajanib (the foreign- ers), these Kurds were unable to own property, enrol in state universities, work in the public sector, or obtain a Syrian passport to travel abroad. 120

Th e situation of Kurds in Syria may be changing, however. Th e political unrest since 2011 has awoken a previously dormant Kurdish movement. Kurds have been involved in anti-government protests, expressed in both Syrian and Kurdish terms. In April 2011, Asad began a series of reforms in an attempt to appease protestors. As part of these reforms, he issued a decree that granted Syrian nation- ality to Kurds lacking the required credentials, 121 and released 48 Kurdish politi- cal prisoners who had been detained for more than a year. 122 But these ‘reforms’ were issued alongside signifi cant military operations that have been responsible for signifi cant civilian casualties. Th e brutal assault on civil society in Syria and the targeted killing of a Kurdish political activist suggests that these reforms are unlikely to quell anti-government activity amongst the Kurds. 123 Th e breakdown of order in Syria, coupled with signifi cant and sometimes violent agitation by Kurds in neighbouring states, suggests that the Kurdish ‘problem’ may become more visible in Syria.

2 Ethnic/National Minorities

2.1 Bedouins

Th e term ‘Bedouin’ or ‘bedu’ has traditionally been used to describe a lifestyle; diff erentiating between populations that raise livestock by natural grazing and those who have an agricultural or urban base ( hadar ). As Cole argues, ‘the mean- ings of “Bedouin” have changed during the past century and before and continue to change. “Bedouin” previously denoted a specialized way of life that revolved around steppe-based herding. Today “Bedouin” refers less to a “way of life” than to

¹²⁰ Th ere is also reported to be a second, even more vulnerable, Kurdish community living in Syria, known as the al-maktoumeen (the hidden). Th is community, unlike the majority of Kurds, does not have identity cards, which are essential to access basic services (such as healthcare). See UN High Commissioner for Refugees, Submission by the United Nations High Commissioner for Refugees for the Offi ce of the High Commissioner for Human Rights’ Compilation Report—Universal Periodic Review: Syria (3 May 2011). ¹²¹ ‘Syria’s Assad grants nationality to Hasaka Kurds’, BBC News , 7 April 2011: <http://www.bbc.

co.uk/news/world-middle-east-12995174> accessed 11 March 2012. ¹²² G Th erolf and A Sandels, ‘Syrian leader seeks to calm Kurdish unrest’, LA Times (8 April 2011):

<http://articles.latimes.com/2011/apr/08/world/la-fg-syria-kurds-20110408> accessed 11 March 2012. ¹²³ In October 2011, a spokesperson of the Kurdish Future Current Party and founding member

of Syria’s new opposition National Council, Mesh’al al-Tammo , was assassinated allegedly by Syrian government agents. See, Amnesty International, ‘Assassination of Syrian Kurdish leader a “danger- ous” escalation’, 11 October 2011.

http://www.bbc.co.uk/news/world-middle-east-12995174

http://articles.latimes.com/2011/apr/08/world/la-fg-syria-kurds-20110408

Minority Identities in the Middle East: Ethno-national and Minorities166

an “identity”’. 124 Whilst Bedouin exist throughout the Middle East, in Southwest Asia, and North Africa, they are often not recognized, as ‘Bedouin is not an occupation recording on a national identity card or passport’ and whilst colonial regimes would recognize a category of Bedouin in their censuses, ‘Bedouin are not enumerated as such in today’s national censuses’. 125

Although our focus in this section will be on Bedouins living within Israel, questions related to citizenship 126 and discrimination that are raised in this case are also shared by Bedouin communities living elsewhere. 127 On the question of citizenship, a 2010 report on the issue of statelessness in the Middle East and North Africa region prepared by UNHCR notes:

. . . the nomadic way of life of Bedouin groups impeded their access to citizenship during the period of state formation, leaving some stateless. Furthermore, children born within nomadic, migrant or displaced communities fi nd themselves at heightened risk of state- lessness, because birth registration rates are generally understood to be much lower within such communities. Birth registration is pivotal to the prevention of statelessness because it documents place of birth and parental affi liation, thereby proving a child’s entitlement to the nationality of a state under the applicable law. 128

Whilst Bedouins living in other parts of the region face exclusion and discrimin- ation, the Bedouins of the Negev Desert in Israel have been identifi ed as par- ticularly at risk. 129 In this area, approximately 150,000–200,000 indigenous Bedouins reside on territory that the Israeli government claims to be terra nullius.

¹²⁴ DP Cole, ‘Where Have the Bedouin Gone?’ (2003) 76(2) Anthropological Quarterly 235–67, 237. ¹²⁵ Ibid 236, 262. ¹²⁶ Th is is particularly the case in Kuwait and in Lebanon. On Kuwait, see Refugees International,

Kuwait: Still Stalling on Statelessness (11 May 2010); Human Rights Watch, Th e Bedouins of Kuwait: ‘Citizens without Citizenship’ (1 August 1995). On Lebanon, see UN High Commissioner for Refugees, Th e Situation of Stateless Persons in the Middle East and North Africa (October 2010) 6; Immigration and Refugee Board of Canada, Lebanon: Whether Bedouins born in Lebanon are entitled to Lebanese citizenship and are able to obtain identity documents; information on decree 5247, including whether it enabled naturalization of stateless Bedouins and information on the time before it was in eff ect; consequences of illegal entry to or exit from Lebanon (20 February 2007). ¹²⁷ Whilst much of the Bedouin ‘way of life’ has been disrupted, the Bedouin identity remains and

is found across the Middle East and North Africa (MENA), Africa, and in Southwest Asia. Th ere is a signifi cant population of Bedouins in Jordan (estimated at 33 per cent), as well as in Egypt. Finding a complete listing of where the Bedouin are located is diffi cult. Th e World Directory of Minorities by Minority Rights Group International, for example, has a tendency either to divide these groups by ethnicity or tribe, with references made to a ‘nomadic’ way of life within the description, or to exclude them completely (e.g. Tarabeen Bedouin of Egypt). For a more recent overview, see, Cole (n 124). Whilst we are concentrating on the situation of the Bedouin in Israel, the degree of marginalization that we detail in this region is not unique. Th e events in the MENA region in 2011 have revealed the socio-economic marginalization of Bedouin communities in several states. See, in particular, the piece by H Sherwood, ‘Sinai explodes into violence after years of chronic poverty and alienation: Egypt’s Bedouin accused of looting resorts, bombing pipelines and abducting foreigners in post-Mubarak security vacuum’, Th e Guardian (14 February 2012). ¹²⁸ UN High Commissioner for Refugees (n 120). ¹²⁹ Th ere is a signifi cant body of work and commentary on the situation of the Bedouins in the

Negev desert. See: CEDAW (n 19); CERD (n 20); CESCR (n 22); Adalah Th e Legal Center For Arab Minority Rights in Israel, Nomads Against Th eir Will: Th e attempted expulsion of the Arab Bedouin

2 Ethnic/National Minorities 167

Th e government denies Bedouin land claims on the basis that they do not possess appropriate documentation. A series of laws enacted between 1948 and 1966 enabled the state ‘to confi scate vast areas of Bedouin land for agricultural use, and to create nature reserves and military zones’. 130 In 1965, a plan was devised under the Planning and Building Law, 131 which declared most of the land in the Negev area to be state-owned. Th e plan did not recognize Bedouin ownership of land and retroactively re-zoned the lands on which many Arab villages sit as ‘non-residential’. Th is meant that those villages that existed prior to this law were no longer formally recognized. Th ese ‘unrecognized Arab villages’ were not provided with basic government services such as electricity, sewage disposal, and water.

Since 1948 the government has implemented various measures through the enactment of land laws to remove Bedouins from the Negev in order to facilitate the construction of settlements. 132 Th ere have been a number of legal challenges preventing the forced urbanization of the Bedouin community (as the govern- ment has relocated approximately 120,000 Bedouin to seven approved towns). Th ese legal challenges have slowed, but not thwarted, government attempts to forcibly displace the Bedouin community from this territory. In what may prove to be the fi nal stage in implementation of this policy:

On 11 September 2011, the Israeli cabinet decided to go ahead with the controversial ‘Prawer plan’, which aims at providing a full resolution to continuing issues between the state and Bedouin over land ownership, recognition of villages, and provision of basic infrastructure and facilities. Th e government of Prime Minister Benjamin Netanyahu sees

in the Naqab: Th e example of Atir–Umm al-Hieran (September 2011); Minority Rights Group International, Israel’s Denial of the Bedouin (November 2011); Human Rights Watch, Land and Housing Rights Violations in Israel’s Unrecognized Bedouin Villages (31 March 2008), 20(5)(E). ¹³⁰ Minority Rights Group International (n 129); Human Rights Watch (n 129) 20(5), 3. ¹³¹ Binding Law in Hebrew is on fi le with author. English translation available at: <http://www.

sviva.gov.il/Enviroment/Static/Binaries/Articals/Planning_and_Building_Law_1965.excerpts_1. pdf> accessed 11 May 2012. ¹³² Th ere are a number of Cabinet Decisions that relate to the appropriation of land in this area,

these include: Cabinet Decision No 2425(2002), which increases the enforcement of the planning and building laws and land laws; Cabinet Decision No 881 (2003) (the Sharon Plan), which allocated NIS 1.1 million for development in Bedouin areas; Cabinet Decision No 4415 (2005) or ‘Strategic National Plan for the Development of the Negev’. In 2007, the government in accordance with Cabinet Decision No 2491 appointed a Committee, known as the Goldberg Committee (named after its Chair, Justice Eliezer Goldberg). Th e Committee was to advise the government on appropri- ate measures to address the situation of the Bedouin in the Negev. Amongst the Committee’s recom- mendations was that Bedouin villages be recognized, except where such recognition confl icted with the government’s regional plans. Th e Committee’s recommendation was submitted to the govern- ment and under Cabinet Decision 4411, an implementation team was appointed to develop a plan, in accordance with the Committee’s recommendation. Adalah has argued that: ‘Th ere are indications, based on drafts of the implementation team’s report (known as the Prawer Report), that this imple- mentation plan will maintain existing governmental policy towards the Bedouin, as manifested in the non-recognition of their historic rights to their land and evacuation of the unrecognized villages. Indeed, the outline plan stands to make the situation worse by suggesting new legislation that would provide the state with additional tools with which to enforce its policy.’ See, Adalah (n 129) 10.

http://www.sviva.gov.il/Enviroment/Static/Binaries/Articals/Planning_and_Building_Law_1965.excerpts_1.pdf

Minority Identities in the Middle East: Ethno-national and Minorities168

the plan as an attempt to end the long standing dispute between the state and its 200,000 minority Arab Bedouin population. But the plan has been drawn up without any consulta- tion with Bedouin communities and will in eff ect extinguish Bedouin land claims without adequate compensation. 133

Bedouins forcibly relocated to the government planned townships ‘suff er dispro- portionately compared to Jewish towns in Israel from food insecurity, poverty, unemployment, crime, low levels of education, and poor health. Th ey are over- crowded, and they were built at least partly on confi scated land claimed by other Bedouin, leading to internal communal confl icts.’ 134

Th e socio-economic disadvantage and marginalization of the community is signifi cant. Unemployment rates amongst women are said to be almost 100 per cent and 50 per cent amongst men. 135 Th e high infant mortality rate, low rates of school enrolment, especially for girls, poor housing conditions, and ongoing deprivation of land, led CESCR to highlight in their Concluding Observations:

. . . its concern that the ‘excessive emphasis upon the State as a “Jewish State” encourages discrimination and accords a second-class status to its non-Jewish citizens’ . . . Th is discrim- inatory attitude is apparent in the continuing lower standard of living of Israeli Arabs . . . In this regard, the Committee expresses its concern that the State party’s domestic legal order does not enshrine the general principles of equality and non-discrimination. 136

2.2 Berbers

Th e Berberophone community are indigenous to North Africa and can be found across the Maghreb and ‘unlike Copts or Kurds, Berbers represent the most ancient known inhabitants of all of North Africa—an overwhelming majority in a huge territory—who were never driven entirely from their land or fully absorbed into a large, colonizing population’. 137 Th e largest Berberophone communities are to be found in Algeria, especially in Kabylia, Aur è s, the M’zab, and the Sahara, comprising between 20 and 25 per cent of the population, throughout Morocco, where they comprise a majority, and in Libya and Tunisia. 138 Th e relationship between the Berber community and the state in each of these countries varies signifi cantly but there is a shared historical narrative that has emerged, one in

¹³³ Minority Rights Group International (n 129) 1. ¹³⁴ Human Rights Watch (n 129) 16. ¹³⁵ Reported in Minority Rights Group International (n 129) 5. ¹³⁶ CESCR (n 22) para 16. ¹³⁷ D Crawford, ‘Amazigh Identity and the Moroccan State’ in M Shatzmiller (ed), Nationalism and

Minority Identities in Islamic States (McGill-Queens University Press 2005) 164–94, 166. ¹³⁸ Although the Berbers are indigenous to the area within Tunisia’s borders, currently residing in

the South, there is no credible information that provides either accurate demographics or informa- tion on the minority status of the Berber population in Tunisia. Th e authors have been unable to fi nd evidence of a Berberophone oppositional movement in Tunisia, which seems to support MRG’s asser- tion that, from within the Tunisian Berber communities, ‘no signifi cant minority-based opposition has emerged’.

2 Ethnic/National Minorities 169

which critical observers suggest that an ‘imagined community’ is revealed, the construction of which has served (at diff erent times) colonial, state, and Berber interests.

It is important to note that the Berber community is not homogenous and comprises quite disparate groups. Within Algeria, for example, the community includes ethnic Kabyle (the largest group), Shawiya, Mozabites, and Tuareg 139 (nomadic) and is religiously inter-mixed, though most are Sunni Muslim. Th e distinguishing feature for Berbers is language, as they share a common root language of their spoken dialects and, in some cases, territorial concentration. Whilst literatures on the Berber tend to emphasize the Arab/Berber divide, this characterization has been challenged:

Contemporary Berber challenges to French and Algerian national authority are rooted in the colonial ‘Kabyle Myth’ which conceptualizes Arab/Berber ethnic diff erences in Algeria as primordial. While colonial Algeria never had a specifi c ‘Berber policy’ as in Morocco, a network of research centers, archives and journals devoted to the scientifi c study of Berber language and culture was created to fi x the ethnic boundary between the two groups and to use such a division to justify economic and social policy. 140

One part of the mythmaking was the degree to which Berbers have ‘resisted’ sub- jugation by a succession of invaders (Phoenicians, Romans, Arabs, French). Th e reality was, as Crawford argues, more nuanced:

Imazighen 141 endured the Roman invasions 2,000 years ago, as they did the French invad- ers less than a century past, by fi ghting at times but also by co-opting the power of the invaders, by collaborating with or profi ting from them, or simply by ignoring outsiders when possible. 142

For the French colonial project in Algeria, the Berbers and the perceived near European characteristics ‘in their nature’ were ‘singled out as the preferred agents of the colonial project in Algeria, the privileged targets of the mission civilisatrice’. 143 Th e end of French rule and the subsequent policy of Arabization turned ‘this mythical opposition’ on its head:

After purging Berber elements from the nationalist movement, the Front de Lib é ration Nationale (FLN) 144 established the newly-independent state on the ideological basis that

¹³⁹ In the pre-colonial period, the Tuareg were nomadic. Th eir main source of income came from controlling caravan routes. French colonization disrupted this activity by establishing control over these routes but it was independence (and the nationalist project) that brought about the total disrup- tion of the nomadic lifestyle of the Tuareg society. By the end of the 1960s, Tuaregs had been assimi- lated into the settled Algerian system. ¹⁴⁰ P Silverstein, ‘Berbers in France and Algeria: Realizing Myth’ (1996) 26 Middle East Report 11–15. ¹⁴¹ Th e Berbers are also referred to as Imazighen/Amazigh. ¹⁴² Crawford (n 137) 166. ¹⁴³ Silverstein (n 140). ¹⁴⁴ Th e Socialist Forces Front (FFS), which is a Berber dominated party, split from the FLN in 1963.

Th e FLN has historically excluded Berbers from high-ranking positions within the party and this has eff ectively excluded Berbers from signifi cant positions within the Algerian government. Th e FFS

Minority Identities in the Middle East: Ethno-national and Minorities170

Algeria was historically Arab and naturally Islamic. After 1973, the Boumedienne regime carried this Arabization to its logical end, demonizing Berber identity as simultaneously backward (part of the pre-Islamic jahiliyya ) and colonialist (privileged by the French). University courses in Berber linguistics (taught since the colonial period) were eliminated, the public and literary use of Berber was outlawed and a disproportionate number of Islamic institutes were established in Berberophone areas. 145

Th e 1990 Arabization bill endeavoured to complete the Arabization of admin- istration and school. During this period, the increasing political challenges to the Algerian government posed by the Islamic Salvation Front (FIS) and other Islamic parties also impacted the Berberophone communities. Although the elec- tions that provided the FIS victory in 1992 were annulled, leading to protracted civil war, the government conceded some political and social terrain to groups calling for the Islamization of Algeria. 146 For the Berbers, who advocated a secu- larist and pluralist government platform, such overtures posed yet another threat to their aspirations. Th e Berber response, in part, was to ‘stake out an ideological position between the Algerian military regime and the Islamists’. 147

Th e political landscape remains repressive in Algeria. Although there have been a series of elections where oppositional candidates were fi elded, the results of these have been contested. Th e most recent 2009 election fi elded few credible opposition candidates and saw the re-election of Algerian President, Abdelaziz Boutefl ika, for a third term. Where the government has been successful at remov- ing or controlling oppositional groups, it has been less successful at quelling the Berberophone, particularly in the Kabylie region:

While authorities in Algiers have silenced their other critics, mainly through repression, they have failed to defl ect the cultural, economic and social demands coming from the Kabyles. When repressive measures did not work, the regime embarked on a campaign to discredit the movement representing the popular discontent, insinuating that Kabyle demands are manipulated by foreign forces and constitute a threat to national unity. In response, Kabyle activists insist on the national character of both their movement and the injustices that it decries: shortages of water and housing, high unemployment and what Algerians call hogra, the contempt of offi cials for the citizenry they are supposed to serve. Kabyle unrest is ongoing. 148

has called for a secular and pluralist government in Algeria, for the offi cial recognition of Tamazight (the Berber language), and for greater autonomy and input into public policies in Berber-dominated areas. In 1989, the Rally for Culture and Democracy (RCD) was formed. Th e RCD is a political party representing Berber cultural as well as broader political interests. Under the umbrella of a Berber Cultural Movement (MCB), the RCD and FFS formed an alliance to take joint initiatives in push- ing Berber issues at the national level. In 1999, a coalition government was formed that included the RCD. Th is marked the fi rst time a Berber party has been part of a ruling coalition. ¹⁴⁵ Silverstein (n 140) 12. ¹⁴⁶ Th is included the mandatory use of Arabic in schools and government. ¹⁴⁷ Silverstein (n 140) 11. ¹⁴⁸ See Y Bouandel, ‘An Algerian Presidential Free-for-All’ Middle East Research Information Project

online (6 April 2004): <http://www.merip.org/mero/mero040604> accessed 8 January 2012.

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2 Ethnic/National Minorities 171

In April 2001, a Berber youth died in police custody, resulting in protests and vio- lence, which spread outside of Berber-dominated areas. Th e government endeav- oured to placate the community by amending the Constitution in October 2001 to make Berber a ‘national’ though not offi cial language. Th is was followed by additional attempts in 2005 to meet further Berber demands.

Whilst the repressive strategies to excise Islamist movements from the political sphere have been moderately successful, overtures by the government to Islamist groups in 2006 indicate that the policy has been confl icted. 149 Th e challenges to other North African regimes have not gone unnoticed within the Algerian politi- cal elite and how this will unfold and its eff ect both on Berberophone society and the desire for a secular and pluralist society remains unclear.

A majority of the Libyan population has a mix of Arab–Berber ancestry. Whilst the exact number of Berberophone in Libya is not known, the estimates range from 4–10 per cent, making them the largest non-Arab minority. Th ey live pri- marily in the West, in the Nufasa mountain area, with related Tuareg 150 commu- nities living primarily in the South. Th e Libyan Berberophone community adhere to a Sunni branch of Islam, mixed with indigenous beliefs from Sudan and West Africa. Under the former regime of Muammar Gaddafi , Shar î’ ah law governed the country as well as Gaddafi ’s 1975 ‘Green Book’, which crafted a particular form of ‘direct democracy’ as opposed to democracy based on Western liberal principles.

Th e repressive nature of the Gaddafi regime is well documented. 151 For the Berber community, this resulted in ‘discrimination and harassment by security offi - cials’. 152 Th e Amazigh language was banned from schools and the media, as was the ‘use of non-Arab Amazigh names on all offi cial documentation’. 153 Such practices were systematic under the regime and highlighted in the Concluding Observations of CERD in 2004, 154 in 2006 by CESCR, 155 and in 2007 by the HRC. 156

¹⁴⁹ A six-month amnesty, given to Islamists who participated in the civil war in the 1990s by President Abdelaziz Boutefl ika if they agreed to disarm, was met with limited success. ¹⁵⁰ Much like the Tuaregs of Algeria, the nomadic life of the Tuareg communities in Libya has been

disrupted and Tuaregs have been confi ned to settled communities. ¹⁵¹ Th ere are a signifi cant number of reports compiled by international human rights organiza-

tions as well as UN human rights bodies. In particular, see Amnesty International, Libyan Arab Jamahiriya: Submission to the UN Universal Periodic Review Ninth session of the UPR Working Group of the Human Rights Council: November–December 2010 (12 April 2010), MDE 19/005/2010; Human Rights Watch, Libya: Words to Deeds: Th e Urgent Need for Human Rights Reform (25 January 2006), E1801; UN Human Rights Council, National report submitted in accordance with paragraph 15 (a) of the annex to Human Rights Council resolution 5/1: Great Socialist People’s Libyan Arab Jamahiriya (24 August 2010), A/HRC/WG.6/9/LBY/1; UN Human Rights Committee (HRC), Consideration of reports submitted by States parties under article 40 of the Covenant: International Covenant on Civil and Political Rights: concluding observations of the Human Rights Committee: Libyan Arab Jamahiriya , 15 November 2007, CCPR/C/LBY/CO/4. ¹⁵² Human Rights Watch, World Report 2011 : Libya (24 January 2011). ¹⁵³ Ibid. ¹⁵⁴ CERD, Concluding observations: Libyan Arab Jamahiriya (10 May 2004) CERD/C/64/CO/4. ¹⁵⁵ CESCR, Concluding observations: Libyan Arab Jamahiriya (25 January 2006) E/C.12/LYB/CO/2. ¹⁵⁶ HRC, Concluding observations: Libyan Arab Jamahiriya (15 November 2007) CCPR/C/LBY/

CO/4.

Minority Identities in the Middle East: Ethno-national and Minorities172

Th e Berber participation in the 2011 uprising that led to Gaddafi ’s removal from offi ce is worth noting. As one commentator has observed, ‘after fi ve months of de facto independence, Berbers in the Nafusa Mountains are standing up their own force and cultural symbols’. 157 Just how the regime change aff ects its minor- ity communities remains uncertain, but what is clear is that the implications may reach beyond its borders as:

Nearer to home, the Libyan militiamen might set an example for the discontented, partic- ularly Berber kinsmen, seeking to slough off the remaining ancien regimes of North Africa. No sooner did Nalout’s Berbers vanquish the colonel than graffi ti surfaced on town walls calling for the toppling of neighbouring Algeria’s military junta. 158

Like the other North African countries where ‘Berbers represent the most ancient known inhabitants’, the Berberophone population in Morocco is diverse. 159 It is this diversity and legacy of intra-communal disputes within the various Berber communities that has raised questions in Morocco regarding the nature of Berber identity. Th ese debates about the authenticity of Berber identity are echoed, as noted, in other North African countries, with some writers arguing that it is a constructed identity, while others contend that all identity is constructed, and still others argue the presence of a historical legacy of Amazigh consciousness. As Crawford has argued, ‘[d]espite the claims and counterclaims of historical, ideo- logical engineering, it seems undeniable that as long as there has been an entity identifi able as Morocco, Tamazight-speaking people have been fundamental to it’. 160

Despite this historical tie to territory and demographics wherein Berber speak- ers comprise approximately 40 per cent of the Moroccan population, Berbers have been excluded from sites of power since independence. Th is exclusion from the sociopolitical fabric of society has been underpinned both by ‘Arab resistance to seeing Berbers as a valid part of North African culture and society’ 161 and by a wider discourse often embraced by Gellner and others who reduced Berberism to language, rather than to a distinct group. 162 In 2001, King Mohammed VI of Morocco issued a royal edict ( dahir ), which established the Royal Institute of the Amazigh (Berber) Culture (IRCAM). Th e edict was signifi cant as it was the fi rst time that Amazigh culture and language were recognized at national level and offi cially promoted as part of Moroccan culture. It also raised the possibil- ity, as Crawford argued, that the Berberophone communities would fi nd a role in ‘the national imagination’. 163 Yet, it is also possible that IRCAM was part of

¹⁵⁷ N Pelham, ‘Libya, the Colonel’s Yoke Lifted’ Middle East Report Online : <http://www.merip. org/mero/mero090711> accessed 8 January 2012. ¹⁵⁸ Ibid. ¹⁵⁹ Crawford (n 137) 164–94, 166. ¹⁶⁰ Ibid 171. ¹⁶¹ Ibid 178. ¹⁶² E Gellner and C Micaud, Arabs and Berbers (1st edn, Gerald Duckwort 1973). ¹⁶³ Crawford (n 137) 164.

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2 Ethnic/National Minorities 173

the Monarchy’s historical strategy of ‘manipulating sectarian diff erences’. 164 Th e reforms promised in 2001 have been slowly implemented. In 2003, the fi rst of the reforms was implemented with ‘instruction in the Berber (Tamazight) lan- guage to fi rst-year pupils in 317 primary schools, and announced that Berber classes would be taught at all level [sic] in all schools within ten years’. 165 By 2006, Tamazight was being taught in the schools. In the revised 2011 Constitution, Amazigh was recognized as an offi cial language. Whilst a push for recognition of language was one common Berberophone goal, another yet unfulfi lled demand is for improved socio-economic conditions. Th is is not to graft on to the mythol- ogy of an urban (Arab)–rural (Berber) divide; it is a demographic fact that many of the ‘rural poor are Tamazigh speakers’. 166 Whether these factors engender a unifi ed and more powerful Berberophone political consciousness and movement remains to be seen.

2.3 Animists

Whilst a majority of Animists live in what is now South Sudan, there is also an Animist population in the North, primarily in Darfur. Prior to independence in the South, Animists and Christians living primarily in the South, but also in North Sudan, faced signifi cant discrimination by the Khartoum government. A 2000 United States Commission on International Religious Freedom (USCIRF) report prepared by Gaspar Biro, the former UN Special Rapporteur on the situ- ation of human rights in the Sudan on the status of Christians and Animists in the South, stated:

Cultural and linguistic assimilation of these minority groups and their members was asserted as offi cial government policy over the last decade, and Islamization (sometimes by coercion) mainly by non-governmental Islamic relief organizations, fully backed by offi cial Khartoum, coupled with individual and group persecution, became normative in the Sudan of the 1990s. 167

July 2011 marked independence in South Sudan and ostensibly the end of these repressive measures. Th e new Constitution in South Sudan provides for freedom of religion and contains anti-discrimination provisions. Th at said, South Sudan remains, at best, a fragile state. As discussed earlier, 168 the 2005 Comprehensive Peace Agreement, the elections of 2010, and the secession of South Sudan in July 2011 have not stabilized the situation in greater Sudan, North or South of the border. Across the border, the confl icts in the Southern Kordofan and Blue Nile

¹⁶⁴ Ibid 188. ¹⁶⁵ Minority Rights Group International, World Directory of Minorities and Indigenous Peoples—

Morocco: Berber (2008) ¹⁶⁶ Crawford (n 137) 187. ¹⁶⁷ Hearings on Religious Persecution in Sudan: Professor Gaspar Biro Prepared Testimony to the

United States Commission on International Religious Freedom (15 February 2000). ¹⁶⁸ See Chapter 2, section 1.2.

Minority Identities in the Middle East: Ethno-national and Minorities174

states have ‘caused some 80,000 Sudanese refugees to fl ee across the border into Unity and Upper Nile states in South Sudan’. 169 Th e South faces its own internal confl ict in the Jonglei state as there has been violent inter-communal fi ghting between the Lou Nuer, Murle, and Dinka communities since 2006, which esca- lated at the end of 2011. Also in Jonglei, four Christians were killed in December 2011 in circumstances that remain unclear. Despite the now formalized North– South border, interference in the South by the Khartoum regime continues. In the North, the confl ict in the Darfur region continues and MRG has placed the Fur, Zaghawa, Massalit (and other) ethnic minority communities living in that region as ‘peoples most under threat’. 170 Th ere has been signifi cant displacement of the civilian population in Darfur as the fi ghting between both the Sudan Liberation Movement/Army (SLM/A) and Justice and Equality Movement (JEM) groups and the Sudanese military, police, and the Janjaweed continues.

2.4 Turkoman

Turkoman also referred to as Turcoman, Turkman, or Turkomen trace their origins back to Turkic-speaking tribes that emerged from Oghuz Khan in the seventh and eighth centuries. Turkmen communities, related to the peoples of modern Turkey, live in a number of countries in Central Asia. Within our study area, they are present in Iran, Iraq, 171 and Afghanistan.

Like the Kurds and Baluchis, Turkmen (or Tukoman) are Sunni Muslim of the Hanafi tradition and consequently also constitute a religious minority in Iran. Th ey comprise approximately one per cent of the population, 172 living mainly in the Golestan and North Khorasan provinces. As with other ethnic and religious minorities in Iran, Turkmen have faced discrimination in all areas of civil and political life. A May 2012 report of the USCIRF notes:

Muslim minorities continue to face repression. Several of the country’s ethnic minorities— Arabs, Baluchis, Kurds, and Turkmen—practice Sunni Islam. Th is means these groups are doubly aff ected, and subject to discriminatory policies based on both their ethnic identity and their faith. Sunni Muslim leaders regularly are intimidated and harassed by intelli- gence and security services and report widespread offi cial discrimination. In addition, the

¹⁶⁹ UN News Service, ‘Number of people aff ected by South Sudan clashes has doubled’ 20 January 2012: <http://www.unhcr.org/refworld/docid/4f1e8acb2.html> accessed 12 February 2012. ¹⁷⁰ Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples 2011

(July 2011) 234/238. ¹⁷¹ An examination of Iraqi Turkmen is included in Chapter 4. ¹⁷² All statistics, related to the populations of Iran’s ethnic and religious minorities, are estimates

often supplied by representative groups, NGOs (local and international), or UN bodies. Th e Irani government does not provide census fi gures for these groups, arguing: ‘Given the absence of any divi- sion based on race or ethnicity in any walk of live, ethnic characteristics are not elicited during offi cial censuses. No precise fi gure can therefore be presented as to the population of the various ethnic groups in Iran.’ See, CERD/C/431/Add.6, 17 February 2003, para 11.

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2 Ethnic/National Minorities 175

Iranian government discriminates against the Sunni community in government employ- ment, particularly in leadership positions in the executive and judicial branches. 173

As noted earlier, Iran has a legacy of sociopolitical and economic disenfranchise- ment and exclusion of ethno-religious minority communities. Th e contested 2009 elections ushered in a particularly repressive set of measures, the burden of which has fallen on ethnic and religious groups (such as the Turkmen) that the government perceives to challenge the state’s legitimacy.

Th e Turkmen of Afghanistan live primarily in the North, where their presence is relatively recent, having arrived from the then Soviet Union during the 1920s and 1930s as refugees. Turkmen and Uzbeks were part of the failed Basmachi revolt in the Soviet Union, which resulted in repressive measures against both communities. 174 Historically, Turkmen in Afghanistan have been politically dor- mant. Th is was, in part, a result of their earlier economic independence. Although Taliban rule curtailed this autonomy, and the Soviets before them engaged in divide-and-rule policies in the region, the Turkmen have remained:

. . . neutral throughout the decades of confl ict in Afghanistan. As a result they had no pow- erful leaders or warlords to represent them politically during and in the aftermath of the civil war and the modern rebuilding process. Accordingly, they remained apart from the social and political mainstream of Afghanistan. Th ey have been historically excluded from the decision-making processes and ignored by the ruling class. Th ey had no representation to talk about their rights and have never generally been properly represented in the overall administration structures. 175

In the aftermath of the invasion of Afghanistan and the formulation of the 2004 Constitution, Turkmen were recognized as an ethnic group under Article 4, and where Turkmen comprised a majority in a given territory, Turkmani was recog- nized, under Article 16, as the third offi cial language. After the 2004 Presidential election, a Turkmen was appointed Minister of Education, marking the fi rst time a Turkmen was represented in Afghanistan’s government.

2.5 Ahwazi Arabs

Th e Arab community in Iran is believed to comprise between 3 and 8 per cent of the population. A signifi cant portion of this population lives in the Khuzestan province in Southern Iran. Khuzestan, known as Ahwaz by the Arab community, is an oil-producing region bordering Iraq. Ahwazi Arabs are largely Shi ‛ a, but there are also Sunni Ahwazis that live in Southern Khuzestan, near Bandar Abbas.

¹⁷³ United States Commission on International Religious Freedom, USCIRF Annual Report 2012— Countries of Particular Concern: Iran (20 March 2012). ¹⁷⁴ For further reading see, WS Ritter, ‘Revolt in the Mountains: Fuzail Maksum and the Occupation

of Garm, Spring 1929’ (1990) 25(4) Journal of Contemporary History 547–80. ¹⁷⁵ Minority Rights Group International, World Directory of Minorities and Indigenous Peoples—

Afghanistan: Uzbeks and Turkmens (2008).

Minority Identities in the Middle East: Ethno-national and Minorities176

Until 1925, this region was an autonomous emirate known as Arabistan. In 1925, central control was imposed by military force and, in 1936, the province was renamed Khuzestan. Th e region has been politically volatile, including unsuccessful seces- sionists attempts since 1979. Although Arabs remained loyal to Iran during the Iran–Iraq war, the central government has remained uneasy about this popula- tion. Systematic discrimination in law and practice on cultural-linguistic grounds and high poverty rates 176 escalated tensions between Ahwazi Arabs and the state. In 2005, this culminated in what is colloquially referred to as the Ahwazi intifada during demonstrations in central Ahwaz, which fl ared up signifi cant violence. Amnesty International reported that:

Scores of Iranian Arabs were killed, hundreds were injured and hundreds more were detained during and following these demonstrations, during which the security forces appear to have used excessive force in their policing resulting in unlawful killings, includ- ing possible extra-judicial executions. It is feared that many of those detained may have been tortured or ill-treated. 177

Th e demonstrations were triggered by a contested government document 178 that provided a framework for reducing the number of Arabs in the province. Arabs were to be transferred out of Khuzestan to other parts of Iran, and non-Arabs, including Persians and Turkic-speaking Azeris, were to be transferred in.

Demonstrations and violent unrest, met with government repressive measures, continue to date and has been documented by Amnesty International, Human Rights Watch, the US Department of State, and the International Federation for Human Rights. Th ese have included bombings within and outside Khuzestan often followed by ‘televised “confessions”’ of those allegedly responsible.

3 Political Minorities

3.1 Shi ‛ a in Saudi Arabia Saudi Arabia has a majority Sunni Muslim population that adheres to a Wahhabist form of Islam, the offi cial religion of the kingdom. Th e Shi ‛ a com- munity in Saudi Arabia comprise 10–15 per cent of the population and resides mainly in the Eastern province and in Medina. Th e human rights record of Saudi, particularly in relation to its minority communities, is poor, 179 with the

¹⁷⁶ Despite the fact that Khuzestan is an oil-rich province, Ahwazis have alleged that they are deprived of access to resources. In October 2006, it was reported that the Council of Guardians approved a bill allocating 2 per cent of Iran’s oil revenues to Khuzestan province. ¹⁷⁷ Amnesty International, Iran: Defending Minority Rights—Th e Ahwazi Arabs (17 May 2006), AI

Index: MDE 13/056/2006. ¹⁷⁸ Th e government denied the document’s authenticity. ¹⁷⁹ Th ere are severe restrictions on freedom of religion or belief in Saudi, even amongst the Muslim

community. In a 2009 Amnesty International submission to the Human Rights Council under the

3 Political Minorities 177

socio-economic, political marginalization, and discrimination of the Shi ‛ a com- munity particularly acute. Like the Shi ‛ a in Bahrain, the Shi ‛ a–Sunni divide in Saudi is part of a larger geopolitical and religious schism—an Arab-Sunni bloc dominated by Saudi Arabia, on the one hand, and Shi ‛ a Iran, on the other. For the Shi ‛ a in the Arab Gulf states, this has mapped out both domestically and regionally in a number of ways. Within these states, Saudis have attempted to foster Arab nationalism and Sunni militancy in an attempt to ensure that Iran does not become a regional power. 180 As Roy has noted:

In this context, Riyadh considers the democratic movement that has developed in Bahrain as a double threat: an internal threat, because it undermines the legitimacy of the existing monarchical regime (and, with it, that of the Saudi monarchy) and an external threat, because it threatens a strategic equilibrium hitherto regarded as vital—the opposition between Iran and Saudi Arabia, based on what Riyadh regards as the defi ning split in the Gulf, that between Sunni and Shia. 181

Domestically, this has left the Shi ‛ a community in Bahrain (examined later in this chapter) and Shi ‛ a in Saudi on the margins of civil and political life. Within Saudi, Shi ‛ a face, ‘systematic discrimination at the hands of the government in education, the justice system, and, especially, religious freedom. Th ey also face exclusion in government employment.’ 182 Shi ‛ a religious education and publica- tions are banned. Shi ‛ a are underrepresented in government, as only fi ve of the 120 full-time (male) and 13 part-time (female) members of the Saudi Majlis al-Shura (the Consultative Council) were Shi ‛ a. As of the end of 2010, there were reported to be six Shi ‛ a judges, all in the Eastern Province cities of Qatif and al-Ahsa. 183

In 2005, King Abdullah bin Abd al-’Aziz Al Saud ascended to the throne promising reform in a number of key areas, including religious tolerance. An

Universal Periodic Review system, it noted that ‘fundamental rights and freedoms enshrined in the UDHR, and the treaties to which Saudi Arabia is a state party, remain largely unprotected by domes- tic legislation, that the provisions of the human rights conventions to which Saudi Arabia is a state party are undermined by signifi cant reservations and declarations that limit the enjoyment of the rights enshrined in them, and that the government continues to enforce laws and practices that allow for corporal punishment and severe discrimination against women and minority groups, in violation of the rights guaranteed in these conventions.’ See UN Human Rights Council, Summary Prepared by the Offi ce of the High Commissioner for Human Rights, in Accordance with Paragraph 15(c) of the Annex to Human Rights Council Resolution 5/1—Saudi Arabia , 14 November 2008, A/HRC/WG.6/4/ SAU/3, 2, IA(1). ¹⁸⁰ In the broader region, there are also fears arising from Shi ‛ a Hezbollah in Lebanon to Shi ‛ a

dominance over Iraqi politics. ¹⁸¹ O Roy, ‘Th e Long War between Sunni and Shia’ (June 2011) 140(5058) New Statesman 21. ¹⁸² Human Rights Watch, Denied Dignity: Systematic Discrimination and Hostility toward Saudi

Shia Citizens (3 September 2009). ¹⁸³ In 2006, Human Rights Watch reported this fi gure as two out of 662 active judges. Human

Rights Watch, ‘Saudi Arabia: Precarious Justice’ Vol 20 No 3(e) March 2008, 133. Th is current fi gure was derived from a 2010 United States Department of State, International Religious Freedom Report— Saudi Arabia (13 September 2011).

Minority Identities in the Middle East: Ethno-national and Minorities178

assessment of the implementation of these, as refl ected earlier, concluded that, in the area of religious reform, the ‘promotion of global interfaith dialogue 184 has not borne fruit at home. Relations between Shi ‛ a and Sunni Saudis remain as bad as ever, and the government continues to systematically discriminate against Shi ‛ a.’ 185 Th e report details infringements on expression and religious practice, as well as harassment, including arbitrary arrest and detention, against non-Sunni Muslims.

3.2 Sunnis in Iran

Although Article 12 of the Constitution states that ‘[o]ther Islamic schools are to be accorded full respect’, in practice, signifi cant discrimination remains against Sunni Muslims in Iran. Th e Sunni population in Iran lives primarily in the Kurdestan, Sistan, and Baluchestan regions and comprises Baluchis, Turkmen, Kurds, 186 and Arab 187 ethnic groups. As we noted in the book’s introduction, there are divisions within divisions, and many groups identifi ed fall under more than one category. Th is is especially the case for Sunnis of Iran.

Th e Baluchis and Kurds are border Sunni ethnic groups that have demon- strated ‘an unceasing quest for some type of independent statehood’, 188 and we have, therefore, included them in our section on trapped minorities. Turkmen and the Arabs of Kh ū zest ā n (as Ahwazis) are examined under ethnic/national minorities. Whilst Turkmen and the Arab are also border communities, they ‘are not particularly separatist’, and the Sunni–Shi ‛ a divide amongst Iran’s Arabs is likely to militate against either the option of an independent state or integration with Iraq. For each of these groups, however, the discriminatory measures faced are twofold—ethnic and religious; i.e. they are denied recognition and adequate representation as both an ethnic and religious minority. 189 As one commentator noted:

Sunni mosques in Mashhad, Salmas, and Shahinzadeh were destroyed, and those in Shiraz, Orumieh, Sanadaj, Saqqez, and Miyandoab were closed. Tehran still does not have a Sunni mosque. Th e state exerts tighter control over Sunni seminaries than it does over Shia ones. State broadcasting does not transmit the Sunni call to prayer, which diff ers slightly from the Shia one. Th ere are no allowances for Sunni representation in the parliament, although

¹⁸⁴ In 2003 (whilst he was still Crown Prince), Abdullah began holding a series of National Dialogue sessions between Sunni and Shi ‛ a religious leaders. ¹⁸⁵ Human Rights Watch, Looser Rein, Uncertain Gain: A Human Rights Assessment of Five Years of

King Abdullah’s Refors in Saudi Arabia (27 September 2010). ¹⁸⁶ Whilst a majority of Kurds in Iran are Sunni, there are signifi cant numbers who are Shi ‛ a or

Sufi . ¹⁸⁷ A majority of Arabs living in Iran are both Sunni and Shi ‛ a. ¹⁸⁸ E Sanasarian, Religious Minorities in Iran (Cambridge University Press 2000) 14. ¹⁸⁹ We detail the status of these groups in earlier sections.

4 Majoritarian Minorities 179

seats are reserved for Jewish, Zoroastrian, Assyrian, and Armenian representatives. Shia Muslims dominate most government posts and parliamentary seats. 190

4 Majoritarian Minorities 191

4.1 Shi ‛ a in Bahrain Bahrain contains a majority Muslim population roughly divided between Sunnis 140,000 (25 per cent) and Ithna’asharis Shii 420,000 (75 per cent). 192 It has a (nominal) constitutional monarchy that, despite being drawn from a demographic minority, has been ruled by the Sunni Al Khalifas since the late 1700s. Sheikh Hamad bin Isa Al Khalifa has been in power since 1999 and is head of the execu- tive, legislative and judicial branches of government. Th e disenfranchisement of the Shi ‛ a community from the state underpins the tensions between Bahrain’s Sunni and Shi ‛ a populations. Th ese tensions have erupted periodically—a failed 1981 coup, street protests, and riots during the 1990s, boycott of the 2002 elections, and the more recent political mobilization in 2011.

Since coming to power, King Hamad has endeavoured to introduce reform. In 2002, Bahrain offi cially became a constitutional monarchy with the elections held in October that year, the fi rst since 1973. Forty members of the Council of Deputies (the lower house of the national assembly) were elected, includ- ing 12 Shi ‛ a MPs. Although not proportional, this was a departure from past Sunni-dominated rule. Th e legal regime in Bahrain for civil and criminal cases includes a number of diff erent courts including those that use the Ja ‛ afari (Shi ‛ a) school of Islamic jurisprudence. Th rough these courts, Shi ‛ a are free to determine personal status issues.

¹⁹⁰ WA Samii, ‘Th e Nation and Its Minorities: Ethnicity, Unity and State Policy in Iran’ (2000) 20(1/2) Comparative Studies of South Asia, Africa and the Middle East 128–37, 130. ¹⁹¹ Th at political change in the Middle East is unfolding is evidenced by the ongoing shifting and

realigning of the status of minorities in the Middle East and North Africa. Prior to 2003, the majority Shi ‛ a community in Iraq were excluded from sites of power by Sunni Muslims who were dominant in economic and political life. Th e US and allied military intervention recalibrated that relationship. Currently, although not included in this category, at the time of this writing the majority Sunni com- munity in Syria is also a majoritarian minority, having been excluded from power by the dominant ‘Alawi regime since 1970. Th at said, there is currently signifi cant political unrest in Syria and the abil- ity of the ‘Alawi regime under al-Asad to remain in power is uncertain. See our discussion of Syria in Chapter 5 and of the ‘Alawis in particular in Chapter 2, section 2.1. ¹⁹² It should be noted that no offi cial statistics are available regarding the Sunni–Shi ‛ a divide.

Minority Rights Group International places the total percentage of Muslims in Bahrain at 81 per cent and suggests a 25 per cent to 75 per cent Sunni–Shi ‛ a divide in that fi gure; Amnesty International places the fi gure at 70 per cent. Th e last offi cial census (pre-independence) taken in 1995 placed the fi gures placed the percentage of Sunnis at 48 per cent and Shi ‛ a at 52 per cent of the Muslim popu- lation; cited in Report of the Bahrain Independent Commission of Inquiry (BICI) (10 December 2011) 13, para 43.

Minority Identities in the Middle East: Ethno-national and Minorities180

In January 2012, Amnesty International published a report on the human rights situation in the Middle East and North Africa for 2011—a year of ‘rebel- lion’ for a number of countries in the region. With regard to the uprisings in Bahrain, Amnesty noted that whilst there was some participation by Sunnis, a majority of those who participated were there because of a ‘perceived economic and political marginalization’. 193 A 2004 assessment by the Minorities Risk Project reported Shi ‛ a discrimination in political, economic, and cultural life but assessed the level of discrimination as ‘moderate’. 194 So whilst the events that began in February 2011, which continue at the time of writing, have been narrated through a Shi ‛ a–Sunni religious divide, the situation is far more complicated. As a US State Department report noted: ‘Th e status and treatment of Shia within society, including government arrests of Shia political activists during the report- ing period, 195 have both political and religious origins, complicating classifi cation of incidents as ones of religious freedom alone.’ 196

Th ere is no doubt that the demands for basic social reform have been crucial to the political mobilization of Shi ‛ a in Bahrain. Th at discrimination has and does exist is ‘evidenced by lower socio-economic indicators’ for Shi ‛ a in Bahrain. 197 Although employment indicators are not reported by religious divide, an aca- demic survey of Bahraini citizens conducted in 2009 suggests that Shi ‛ a are under-represented in the police and military. 198 In the wake of the February 2011 uprising and allegations of widespread torture and abuse in June of that year, the King appointed an independent international inquiry, the Bahrain Independent Commission of Inquiry (BICI), comprising fi ve international legal and human rights experts. In the fi nal report, published in December 2011, the Commission found that in the events that took place between February and April 2011, sec- tarianism underpinned the actions of state authorities and, in some cases, also underpinned actions taken by members of the Sunni community. 199 Th ese included the destruction of private and religious property, verbal and physical

¹⁹³ Amnesty International, Year of Rebellion: State of Human Rights in the Middle East and North Africa (January 2012) MDE 01/001/2012, 32. ¹⁹⁴ See Minorities at Risk Project, Assessment for Shi’is in Bahrain (31 December 2003). ¹⁹⁵ 1 July 2010 to 31 December 2010. ¹⁹⁶ United States Department of State, International Religious Freedom Report—Bahrain (13

September 2011) Introduction. ¹⁹⁷ Ibid. ¹⁹⁸ In fact, whilst the survey itself was small, consisting of only 127 respondents, within this sam-

ple, of those who identifi ed as male, employed Shi ‛ a, and who declared an occupation, none listed military or police employment. For an overview of results of this mass political survey in Bahrain, see J Gengler, ‘Ethnic Confl ict and Political Mobilization in Bahrain and the Arab Gulf ’ (2011) (unpub- lished PhD dissertation, University of Michigan) 145–290. ¹⁹⁹ It should be noted that the Commission also detailed complaints and attacks against the Sunni

community. Th ese attacks, however, were alleged to have been made by ‘some groups of demonstra- tors, either because they professed loyalty to the regime or on the basis of their sect’ (para 1557).

Conclusion 181

abuse including torture, arbitrary arrest and detention, and unfair dismissal or harassment at work. 200

Assessed against the historical backdrop, the uprisings which began in 2011 affi rm that, ‘the Sunni state-vs.-Shi’i rebel narrative, then, is not with- out substance’. 201 Yet, as one commentator has noted, this framework ‘obscures other important elements of the story’, 202 an important part of which is the fact that, much like the Shi ‛ a, ‘ordinary Sunni citizens’ are also excluded from socio-economic decision-making institutions. Th e contrast, however, is that this population ‘has functioned, perhaps unwittingly, as the foundation of the Al Khalifa monarchy, a captive ethno-religious constituency conditioned to care more for combating the perceived march of collective Shi’i ambition than for advancing an independent political agenda’. 203

Th e government has traditionally counted on the spectre of Shi ‛ a-dominated Iran to secure the ‘refl exive support of ordinary Sunnis and to diff use citizen pres- sure for a political opening’. 204 At least in the short term, such a sectarian narra- tive was successfully grafted onto the February 2011 protests. Yet there are signs that the sectarian strategy of rule may well have been exposed, leaving some hope that the uprisings in 2011 will lead to basic social reforms in Bahrain.

Conclusion

As we have noted, our examination of ethno-national minority communities in the Middle East is limited. For each group we examined, there were many others that we did not. What is presented, however, reveals the rather extraordinary and creative ways minority communities respond to shifting power alliances. Some groups achieve this by reinventing themselves or through maintaining neutrality, whilst others have ‘benefi tted’ from globalization and intervention that, even if transitory, have helped to push minority agendas forward. As we move from our overview of minorities to an in-depth assessment of three states in the region– namely Iraq, Syria, and Lebanon—our focus will shift to the legal regimes and institutions that exist for minority rights in each of these jurisdictions. Th ese cases have been selected due to their historic links, but also to demonstrate how similar communities in diff erent political contexts in the region have been treated.

²⁰⁰ Whilst complaints were made by both Sunni and Shi ‛ a who participated in demonstrations, the Commission concluded that: ‘Shia employees were often treated diff erently from similarly-situated employees who were not Shia, thus creating a reasonable presumption that many were subjected to discrimination’ (para 1453). ²⁰¹ J Gengler, ‘Bahrain’s Sunni Awakening’ (12 January 2012) Middle East Report and Information

Project online: <http://www.merip.org/mero/mero011712> accessed 1 February 2012. ²⁰² Ibid. ²⁰³ Ibid. ²⁰⁴ Ibid.

http://www.merip.org/mero/mero011712

Minority Rights in Iraq

Introduction

Th e challenges in analysing contemporary Iraq are numerous—the security situ- ation has confi ned empirical analysis to secondary (often offi cial) and, therefore, mediated sources. As the situation itself is fl uid, any attempt to provide context must be understood as temporal. While our primary task is to highlight the state of Iraq’s minority communities within a socio-legal framework, our examination necessarily includes a critique of the rather fragile unfolding constitution-building process in Iraq and the conceptual frameworks upon which it has been built. Th e ‘liquid’ democracy that was meant to accompany the 2003 intervention has proved illusory for Iraqi communities inside and outside sites of power in Iraq. Th ere can be no other reading of the 2003 US and coalition forces’ intervention in Iraq than that of a ‘transformative occupation’, 1 operating outside the legal constraints dictated by the laws of occupation. Th e language of occupation may have been displaced, but the transformation of the political and demographic landscape in Iraq continues.

To understand Iraq’s colonial present, its history of successive periods of colo- nization must be engaged. Unpacking this history is a considerable undertaking, and we confi ne ourselves to a limited review. 2 What is evident from our research, both in the broader review of the socio-legal landscape of Iraq and specifi cally focussing on minorities, is that, as Gregory argues, we must ‘rethink the lazy

¹ See, A Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ (2006) 100 American Journal of International Law 580.

² Th ere are a number of seminal studies of considerable merit that engage this task. See, espe- cially, E Davis, Memories of State: Politics, History and Collective Identity in Modern Iraq (University of California Press 2005); C Tripp, A History of Iraq (Cambridge University Press 2007); T Dodge, Inventing Iraq: Th e Failure of Nation Building and a History Denied (Columbia University Press and Hurst & Company 2003); S al-Khalil, Th e Monument: Art, Vulgarity and Responsibility in Iraq (University of California Press 1991); H Batatu, Th e Old Social Classes and Revolutionary Movements of Iraq (Saqi Books 2004); A Dawisha , Iraq: A Political History from Independence to Occupation (Princeton University Press 2009); E Davis, ‘Domino Democracy: Th e Challenges to U.S. Foreign Policy in Post Saddam Iraq’, in A Curtis (ed), Patriotism, Democracy, and Common Sense (Rowman & Littlefi eld 2004) 201–18; S Haj, Th e Making of Iraq, 1900–1963: Capital, Power, and Ideology (Suny Press 1997); J Cooley, An Alliance Against Babylon: Th e US, Israel, and Iraq (Pluto Press 2005); I Salucci, A Peoples’ History of Iraq: Th e Iraqi Communist Party, Workers Movements, and the Left, 1924–2004 (P Barr tr, Haymarket Books 2005); G Simmons, Targeting Iraq: Sanctions

Introduction 183

separations between past, present, and future’. 3 Th e particular circumstances that have given rise to the ever-increasing numbers of minorities at risk in Iraq may be diff erent, but the plight of minorities in this region is hardly new. Th e his- torical social formation of the various communities in Iraq—Sunni, Shi ‛ a, Kurd, Turkoman 4 —is central to understanding how these communities are attached to or severed from power bases which, in turn, determine their ‘minority’ status. Equally, however, a closer reading of the multiple histories of Iraq suggests that identity-based cleavages do not necessarily have the historical roots that some lit- erature suggests, which may explain why some recent endeavours to create federal entities based on sectarian identities have not been successful.

Th e concept of the Middle East as an artifi cial construct was introduced in Chapter 1. Th e struggle for control of Iraq’s historical narrative—the hegem- ony of the ‘memories of state’—has taken two distinct paths. Th e fi rst fosters a pan-Arab vision of state, while the other adopts an Iraqi nationalist narrative. Davis captures the development of these two narratives in his seminal work, Memories of State , where he argues:

Political instability and authoritarian rule in Iraq trace their origins to a fundamental disa- greement over the nature of political community in the modern nation-state. Historically, two competing visions of Iraqi society developed. First, a Pan-Arab defi nition of Iraq arose in the wake of the 1914–18 Arab Revolt and the Ottoman Empire’s collapse fol- lowing World War I. Th is vision of political community dates the origins of modern Iraq to its Semitic past, namely the Arabs of the pre-Islamic period and the ‘Abbasid Empire’. According to this vision, because the Iraqi people achieved greatness during periods of Arab unity, then such unity is a prerequisite for progress in the modern era. A second or

and Bombing in US Policy (Saqi Books 2002) and Future Iraq: US Policy in Reshaping the Middle East (Saqi Books 2003); M Rai, Regime Unchanged: Why the War on Iraq Changed Nothing (Pluto Press 2003); J Collins, ‘Choosing War: Th e Decision to Invade Iraq and Its Aftermath’, Institute for National Strategic Studies, Occasional Paper No 5 (2008); D Phillips, Losing Iraq: Inside the Postwar Reconstruction Fiasco (Westview Press 2005); M Etherington, Revolt on the Tigris: Th e Al-Sadr Uprising and the Governing of Iraq (Cornell University Press 2005); A Shadid, Night Draws Near: Iraqs People in the Shadow of Americas War (Henry Holt & Company 2005); D Jamail, Beyond the Green Zone: Dispatches from an Unembedded Journalist in Occupied Iraq (Haymarket Books 2007); N Rosen, Triumph of the Martyrs: A Reporters Journey into Occupied Iraq (Potomac Books 2008); Z Chehab, Inside the Resistance: Th e Iraqi Insurgency and the Future of the Middle East (Nation Books 2005); E Herring and G Rangwala, Iraq in Fragments: Th e Occupation and its Legacy (Cornell University Press 2006); A Baram, ‘Neo-Tribalism in Iraq: Saddam Hussein’s Tribal Policies 1991–96’ (1997) 29(1) International Journal of Middle East Studies ; L Gardner, ‘Mr. Rumsfelds War’ in M Young and L Gardner (eds), Iraq and the Lessons of Vietnam: Or, How Not to Learn from the Past (Th e New Press 2007) and S Ritter, Iraq Confi dential: Th e Untold Intelligence Conspiracy to Undermine the UN and Overthrow Saddam Hussein (Nation Books 2005).

Arabic language sources: ةيديهمت ةلواحم : يقارعلا عمتجملا ةعيبط يف ةسارد ،يدرولا يلع ملع ءوض يف ربكألا يبرعلا عمنجملا ةساردل

.1965 دادغب ،ثيدحلا عامنجألا ةعبط ةداعا ،قارولا راد : ندنل ، (1914–1876) ثيدحلا قارعلا خيرات نم ةيعامتجا تاحمل ،يدرولا يلع

.’1965 دادغب ،ثيدحلا عامتجألا ملع ءوض ي .2007 ،باتكلا ³ D Gregory, Th e Colonial Present (Blackwell 2004) 7. ⁴ Turkoman is also called: Turkmen, Turkman, or Turcoman.

Minority Rights in Iraq184

Iraqist nationalist vision, associated with opposition to the British following their 1914 invasion of Iraq and during the June–October 1920 Revolution, looks for its foundational myths to Iraq’s ancient civilizations as well as to its Arab heritage, but without privileging the latter. 5

Th ese competing claims to narrative remain. 6 While it has come to dominate con- temporary international relations since the 1990s, the underlying confl ict over identity in Iraq goes back at least one century. 7 Contemporary western involve- ment in Iraq has had a catalysing eff ect on the underlying identity fractures, yet, as Al-Tikriti argues, in ‘proto-Iraq’, the Ottomans were rather successful in managing ‘the sectarian tensions of their day’:

Arab, Kurdish, Turcoman, Sunni, Shi ‛ as, Jewish, Assyrian and Sabaean populations all lived under Ottoman rule in one proto-Iraqi province or another from 1515 to 1918. As sectarian loyalties during most of the period tended towards the denominational rather than the national or ethnic, several of the relevant communal fault lines were quite dif- ferent than today. For example, nomadic Shi ‛ a Turcoman populations tended to be quite hostile to imperial interests, which might today most closely coincide with Sunni Turkish interests. Today, the descendants of those same Turcoman populations within Iraq see the Ottoman successor state of Turkey as their primary protector. 8

⁵ Davis (n 2) 13. See also, S Jawad, ‘Nationalism v Pan-Arabism: A continuing tug of war’ (December 2005) available at: <http://www.bitterlemons-international.org/inside.php?id=445> accessed 29 June 2012.

⁶ In a recent piece that captures an Iraqi nationalist narrative, Al-Tikriti argues that whilst decon- structionalism has (and in many ways continues to) underpinned historical discourse on Iraq, his review suggests that the records and writings of the early Ottoman period provides a rather diff erent account: ‘Today, it is frequently stated that “Iraq” didn’t exist until the British created it in the wake of the Great War. In the sense of a discreet nation-state entity with its current borders, this statement is accurate. However, in the wider sense of the term “Iraq”, observers of, publicists for, and willing inheritors of British imperial legacies may have understated the longstanding ties which have characterized the over- lapping geographic realms that currently make up the State of Iraq. Not only were the areas comprising the modern state of Iraq often united under various ancient empires prior to the advent of Islam, but also there are signs that the Ottomans—who ruled the region prior to the British—in some senses treated these same areas as a loose administrative unit.’ See N Al-Tikriti, ‘Was Th ere an Iraq Before Th ere was an Iraq?’ (2009) 3(2) International Journal of Contemporary Iraqi Studies 133.

⁷ For general reading on the history of Iraq with a particular emphasis on the question of its minorities, see TS Kang, Nationalism and the Crises of Ethnic Minorities in Asia (Greenwood Press 1979); L Lukitz, Iraq: Th e Search for National Identity (Frank Cass 1995); RS Simon, Iraq between the Two World Wars: Th e Militarist Origins of Tyranny (Columbia University Press 2004), HA Foster, Th e Making of Modern Iraq: A Product of World Forces (University of Oklahoma Press 1935) and S al-Din Ibrahim, Sects, Denominations and Ethnic Groups (5th annual report) (Ibn-Khaldun Centre for Development Studies, Cairo 2005).

Arabic language sources, please see: نوناقلا ءوض يف تايلقالا قوقح ،ايش قيفش ضاير 2010 ، 1 ط ،راهنلا راد ،توريب ،يلودلا

ةبتكم ،قارعلا يف ةعيشلا جذومن : يبرعلا ملاعلا يف ةيسايسلاو ةيفئاطلا ،ميهاربإ داهرف .1996 ،ةرهاقلا ،يلوبدم

Specifi c to the Kurds in Iraq, see: لاودروكلاخيراتيفثحابموتاسارد،يناتوبلايلعحاتفلادبع 2007 ،قارعلا - ليبرا،ةعابطللزيريبسراد،رصاعملاقارع

.2000 ،توريب،مولعللةيبرعلارادلا،ةيدركلاةيموقلاةلأسملايفتاسارد،داوجيجاندعس ⁸ Al-Tikriti (n 6) 141.

http://www.bitterlemons-international.org/inside.php?id=445

Introduction 185

As Iraq laid at the interface of the Ottoman (Sunni) and Safawid (Shi ‛ a) empires; it became the surface over which power struggles were waged. 9 Historically, this has often been read as a struggle between the Sunnis and Shi ‛ a of Iraq, but as Professor Ali al-Wardi, a prominent Iraqi sociologist has argued, the roots of the Sunni–Shi ‛ a struggle in Iraq were in fact a political struggle between the Ottoman (Turkish) and the Safawid (Persian) states. Although both states were not regarded as ‘religious’, (al-Wardi describe both of them as dictatorial oppressive entities that shared very little with teachings of the Prophet Mohammed or his descendants or the form of Islamic state established by the Prophet and/or his successors), the Sunni–Shi ‛ a division was used, entrepreneurially, with each entity claiming that it had the sup- port of their respective sect. 10

Th e diff erence between Ottoman and British rule did not just lie in the ‘radi- cally diff erent fault-line tensions amongst the region’s ethno-religious groups’ that Al-Tikriti outlines, but also in the system of governance. As we outline in great detail later in this chapter, the Ottoman millet system allowed communal self-rule. Th ese autonomous regimes allowed denominations to self-govern with little interference, proving an eff ective form of governance and facilitating Ottoman rule through:

. . . local elites of diff erent, and frequently hostile, communities. In addition, as this form of limited self-rule was organized communally rather than geographically, it tended to limit territorially defi ned ethnic nationalism. While this approach proved at times ineffi cient for cementing a common imperial identity throughout the population, it did successfully maintain domestic tranquillity largely through communal separation. Finally, the political identifi cation of the Ottoman ruler as both ‘caliph’ and ‘sultan’ usually secured the loyalty of the largest segment of the population, Muslims. 11

As the fault-lines shifted, however, the strategic preference of one group over another would engender ethno-religious tensions that remain part of the landscape in Iraq to date. To understand the extent to which these processes continue to reverberate in contemporary Iraqi society, section 1 examines the historical backdrop to minority identity construction in the state. Much of Iraq’s pre-independence history, during Ottoman rule, overlaps with that of Syria and Lebanon. However, to develop an understanding for how its history has impacted the formation of cohesive groups, our analysis in each chapter will be restricted to the areas broadly traced as being the predecessor to the modern state.

Having addressed the issue of historical ties, this chapter will seek to briefl y introduce the groups of primary concern to us in the study of minority rights. Section 3 identifi es the underpinning basis for minority rights in the state.

⁹ See S Jawad, Iraq and the Kurdish Question: 1958–1970 (Ithaca Press 1981); also see يبرعلا عمنجملا ةساردل ةيديهمت ةلواحم : يقارعلا عمتجملا ةعيبط يف ةسارد ،يدرولا يلع -

ملع ءوض يف ربكألا .1965 دادغب ،ثيدحلا عامنجألا

¹⁰ See A Al-Wardi, Sociological Glimpses from Modern History of Iraq : Volume 1—From the Ottoman Period Until the Mid of the 19th Century (al-Ershad, Baghdad 1971) 12–13.

¹¹ Ibid.

Minority Rights in Iraq186

Drawing heavily on the Iraqi Constitution signals the inherent danger of pro- viding it with legitimacy that may not be bestowed upon it in the aftermath of occupation. However, with all its fl aws, the Constitution identifi es key building blocks and contours of the challenges and obstacles that need to be overcome in the context of forging a unifi ed Iraq. Section 4 ends with an analysis of a number of potential remedies that may be applicable in Iraq. As with each chap- ter in a book of this nature, based on an area that is fast evolving, our analysis is designed to endure irrespective of events in the foreseeable future. Th us, while it is plausible that events may transpire beyond our imagination, we believe the analysis will nonetheless be useful to inform the key decisions that need to be taken as Iraq seeks to rebuild from this most recent disastrous chapter in its history.

1 History

One challenge in providing a historical backdrop to stories of state-crafting that are still unfolding is that history itself remains a project in which there are com- peting claims to hegemonic discourse: the defi ning version of events that capture the social formation of a state. Unpacking this exercise in memory creation seems a far cry from the question at hand. However, only in understanding Iraq’s frac- tured past can we begin to comprehend the incompleteness of the project to sew, rather than safety pin, a fl edgling national identity cutting across ethno-tribal cleavages. Iraq’s past, especially the state’s engagement with its minority com- munities, is characterized, and sometimes defi ned, by repressive measures and violence. In turn, violence has often featured in Iraq’s socio-political landscape, and been incorrectly read as a rejection of an Iraqi state. Yet, it is clear that a deeper analysis is necessary: one that goes beyond the violence to understand the intricacies of identity that continue to impact the creation of an overarch- ing ‘national’ Iraqi narrative. Th e notion of statehood in Iraq only really became relevant around 1921, with ‘independence’ arriving in 1932, although there are compelling arguments to suggest that a truly independent Iraq only emerged after the 1958 Revolution. Against this backdrop, it is unsurprising that creating a stable and democratic Iraq has proved diffi cult.

Th e collective narratives of Iraq’s story serve to generate a space where a par- ticular notion of political community is created. Th e confl ict in Iraq—then and now—is over the shape and form of the community that occupies this space. Th is raises three salient points specifi c to the relationship between minorities and the state. First, there is the question of the relationship between the various ethnic groups within Iraq, and how these are forged and maintained. Secondly, there is the role of the sovereign, and subsequently the state authorities in how minorities were included or excluded in creating a sense of political commu- nity. In the post-Ottoman period, for example, where rule of law was achieved

1 History 187

and maintained by privileging certain groups over others, did the emergence of the state cement or reconfi gure these relationships? Finally, the relationship between the tribal system and its impact on questions of governance need to be fully explored. Th ere are two objectives when revisiting the historiography: fi rst, to challenge some of the unfolding narratives that suggest a type of demo- cratic illiteracy within the Middle East; 12 secondly, to suggest that some of the state-crafting formulae envisaged for Iraq are replete with the historical amnesia that permeates literatures, which endeavour to ‘explain’ Iraqi politics and the role ethnic cleavages play within it.

As the hegemonic contestation over the historical narrative of Iraq continues, the temptation arises to explain Iraq’s violent present and the underpinnings for its authoritarian past through an ethno-confessional model. Yet, such an explana- tion would not provide insights into the often fractious nature of Iraqi politics without recognizing, as Davis has argued, that the ethnic and cultural diversity of Iraq represents both its strength and weakness. 13 Th e strength of Iraq’s diversity lies in the inability of successive regimes to ‘dominate all elements of this diver- sity’ or ‘to subordinate and meld it into the homogeneous political and cultural system that the Ba ‛ th, under Saddam Hussein, worked so hard to impose on Iraqi society’. 14 Its weakness is perhaps all too evident in the sectarian landscape that has gripped Iraq since 2003. Yet, it would be far too simplistic to suggest that the heterogeneity of Iraq’s population underpins the political instability and authori- tarian rule that have plagued Iraq before and since independence. Even a super- fi cial assessment of Iraq’s modern political history suggests that the experience of its communities has shifted and altered as the internal and external socio-political landscape changed. In shedding the ethno-confessional analysis of Iraq’s history, what we fi nd, instead, is that relations between ethnic groups were neither static nor predominantly violent. When violence occurred, it was as likely to be within as between groups; other periods witnessed signifi cant inter-group cooperation. In the period following the Young Turk Revolt of 1908, for example, an Iraqi nationalist movement emerged that cut across ethnic cleavages. Th is ushered in a period of inter-ethnic cooperation between Sunni and Shi ‛ a, Christians, Jews and Arabs, and other ethnic groups. Th is period also accompanied the emergence of Th e Committee of Union and Progress (CUP) into the public domain, which ‘allowed many of the hitherto suppressed currents of political opinion with the three Mesopotamian provinces to fi nd public expression, as they did elsewhere in the empire’. 15 Th is included labour, student, and women’s organizations cutting

¹² Th is is most evident in the concept of the Arab street, which suggests a violent geography; ‘per- ceived primarily as a physical entity, a brute force expressed in riots and mob violence’. A Bayat, ‘Th e “Street” and the Politics of Dissent in the Arab World’ (2003) Middle East Report 226, 10–17, 11.

¹³ Davis (n 2). ¹⁴ Ibid 26. ¹⁵ Tripp (n 2) 22.

Minority Rights in Iraq188

across ethno-religious cleavages. 16 While the strong centralizing powers of the CUP were resisted, the associational behaviour that emerged during this period continued to fl ourish up until the fi rst Ba ‛ thist regime seized power in 1963. 17

Th is diagnosis of Iraq’s history has several implications. It rejects narratives suggesting that Iraq’s divisions are fi xed and static rather than ‘the outcome of the economic, social, and political decay that began during the Iran–Iraq War, but dramatically increased once United Nations sanctions were imposed after the 1991 Gulf War’. 18 Robbed of this historic anchor, the arguments that inter-ethnic cooperation is not possible in contemporary Iraq are less compelling. Accepting that the relationships between minorities and between minorities and sites of power are historically contingent challenges the exceptionalist reading of the Iraq case. Indeed, as Davis observes:

Iraq is not unique in having ethnic and regional tensions. Th e key task is not to identify the existence of sectarian feelings, but to explain why, at a particular point in time , such feelings are translated into violent behavior. In modern Iraq, sectarian violence has been the excep- tion, rather than the norm. 19

Th ese junctures of unrest and the political awakenings of Iraq’s diverse groups are not inevitability borne from a primordial, antagonistic identity clash. Rather ethno-religious identities as markers of inclusion and exclusion are exploited internally and externally and adopted as a vehicle to narrate a distinct view of political community and as a means to maintain social and political order. As Tripp argued:

From the moment of the foundation of Iraq in the 1920s, it was clear that there were very diff erent ideas about its future. Across the country as a whole, the boundaries between these ideas shifted as diff erent groups, variously empowered, tried to assert control, to bring others in line with their own vision of Iraq. Over the course of Iraqi history, these visions have been contrasting and competing. Th e British mandatory authorities during the 1920s, tribal shaikhs under monarchy and republic, Arab Nationalism since the 1930s, Shi ‛ a ‘ulama throughout this period, the Iraqi Communist Party during its heyday in the 1950s and early 1960s, the Kurdish parties in their struggles with each other and with the central authorities, Saddam Husain and the Ba ‛ th party in to the twenty-fi rst century and, more recently, the United States and the forces its brief occupation brought to the fore—all have left an imprint on the story of Iraq. 20

Understood through this lens, the answer as to why, at various points in history, the underlying ethnic and regional tensions moved from latent to overt confl ict

¹⁶ For analysis on political participation and the establishment of political parties, see H Shubbar, Party Work in Iraq 1908–1958 (Dar Al-Turath Al-Arabi, Beirut 1989) and F Shalih Al-Omar, Political Parties in Iraq 1921–1932 (Arab Gulf Studies Centre, Iraq- Al-Basra 1978).

¹⁷ Davis (n 2) 29–147. ¹⁸ E Davis, ‘Rebuilding a Non Sectarian Iraq’ (2007) VI (6) Strategic Insights 4. ¹⁹ Ibid 3. ²⁰ Tripp (n 2) 1–2.

1 History 189

becomes clearer. Iraqi politics, past and present, is replete with policies adopted by successive sovereign powers that sought to use sectarianism as a means through which to exercise territorial control; a policy that was systematically executed under the Ba ‛ thist regime. Th e sectarian violence witnessed today did not feature prominently in pre-Ba ‛ thist Iraq. While it can be argued that minorities were often excluded from socio-economic and political decision-making institutions, and that these structured exclusions would, at times, engender inter-group con- fl ict, it is equally possible to demonstrate instances, as noted earlier, where there were high levels of inter-communal cooperation forged to achieve mutual goals, for example in ending the British Mandate period. So, in unpacking minority experiences in Iraq, it is clear that the focus needs to be shifted from questions of ethnicity and religion to questions focussed on the behaviour of the state.

In this state-centred approach, decisions to co-opt or excise minority groups, and the eff ect of this on intra- and inter-group relations, shifted the state forma- tion processes. As Tripp argues:

Th e Iraqi state, no less than any other state, embodies a certain hierarchy, expressing dif- ferentials of power and status and using sanctions, sometimes violent, to maintain an order suggested by the values and material interests of those who rule. As such, one of the main preoccupations has been to maintain boundaries, both territorially and socially, within Iraq. Given the origins of the Iraqi state and the processes of its formation, certain social groups have always been favoured over others. 21

Th e colonial history of Iraq, so signifi cant to its present crisis, began when the British inherited three Ottoman vilayets (Baghdad, Basra, and Mosul) at the end of World War I. Th ese provinces formed the British Mandate prescribed by the League of Nations at San Remo in 1920. 22 Britain’s state-crafting endeavours in Iraq were motivated by two factors: the need to preserve a safe passage from India and to explore the potential of oil-fi elds near Mosul. In this context, a decision was taken to provide prominence to the Sunni in a bid to counteract the negative pressures of Shi ‛ a dominance. As Lukitz argues:

Th ey [the British] introduced new political and administrative measures that would even- tually lead to a new system of allegiances and loyalties. Th e institutionalization of Sunni dominance over the various ethnic, sectarian and linguistic groups populating the three geographically distinct areas artifi cially united after the war was meant to create a united and homogeneous society. 23

Th e demographic landscape of this period is interesting to note. A 1932 Report of the Educational Enquiry Commission breaks down the ethno-religious demograph- ics of the three provinces to include: 78,800 Christians, 87,500 Jews, 26,650

²¹ Ibid 317. ²² For details of the Conference see JL Gelvin, ‘Th e League of Nations and the Question of National

Identity in the Fertile Crescent’ (1995) 158 World Aff airs 35–44. ²³ Lukitz (n 7) 14.

Minority Rights in Iraq190

Yezidis & Sabeans, 15,650 Bahais, 7,000 Armenians, and 500,000 Kurds. 24 Th e report estimated the settled population of the provinces at 895,000 with the tribal rural population at 1,351. Th ere is no number refl ected for either the Sunni or the Shi ‛ a, and the fi gures indicate signifi cant discrepancies vis- à -vis the dominance of these groups. Sunnis, according to the report, formed the most signifi cant group in the urban areas of Baghdad and Mosul, while the Shi ‛ a were concentrated in the Southern provinces and accounted for 60 per cent of the total population of the three vilayets . 25

Th e diffi culty of centralizing power was mitigated by the strength of the millet system, which had given smaller communities a degree of confi dence in asserting their independence. Th us, despite the Tanzimat reforms implemented through- out the Ottoman Empire in the second half of the nineteenth century, discussed in greater detail in Chapter 5, political and administrative power remained con- solidated in the hands of the ethno-religious groupings that resisted attempts at the creation of supervening structures. 26 Kurdish aghas and tribal sheikhs resisted attempts by central fi gures from the Ottoman and, later, the British empire to undermine their hegemony within their regions. 27

British attempts to centralize and consolidate provinces began with the installa- tion of Emir Faysal as King of Iraq in 1921. 28 Th e codifi cation of British rule was achieved through a series of treaties that set the foundation for modern Iraq. Th e treaties served to identify the parameters within which the country’s new rulers would function, thereby, avoiding friction with their colonial overlords. Th e fi rst such treaty, the Treaty Alliance between Britain and Iraq, was signed in October 1922 with an additional protocol added in June 1924. 29 As Dodge argues, two primary factors moved the British from mandate to treaty: fi rst, a growing, and as the British viewed it, increasingly ‘irrational and dangerous’ 30 nationalist move- ment; and, secondly, a state-building process that had proceeded quicker than anticipated. 31 Th e treaty attempted to transform the British role in Iraq from mandate, read by many in Iraq as ‘sovereign’, to one of partnership. Britain main- tained privileges under the treaty as mandate holder for 20 years, with the pros- pect of renewal every four years thereafter through a vote in Iraq’s constituent assembly. Th is guaranteed British control of the administration and the military of Iraq, providing access to Iraq’s infrastructural facilities including fuel storage,

²⁴ See, P Monroe, Report of the Educational Enquiry Commission (Baghdad: Government Press 1932) and Brooke Popham, Acting High Commissioner, to Lord Passfi eld, Secretary of State for Colonies, FO 371/14524-E5895 (26 September 1930).

²⁵ Lukitz (n 7) 14. ²⁶ For more see KH Karpat, Th e Politicization of Islam: Reconstructing Identity, State, Faith and

Community in the Late Ottoman State (Oxford University Press 2000) 155–82. ²⁷ See M Ma’oz, ‘Ethnic and Religious Confl icts in Iraq’ in M Ma’oz and G Sheff er (eds), Middle

Eastern Minorities and Diasporas (Sussex University Press 2002) 184–207. ²⁸ See G Simons, Iraq: From Sumer to Saddam (Macmillan 1996) 186. ²⁹ Treaty Alliance between Britain and Iraq , FO 371/14515 E125/125/93 (10 October 1922). ³⁰ Dodge (n 2) 22. ³¹ Ibid.

1 History 191

roads, railways, waterways, and ports. 32 An annex to the 1922 treaty guaran- teed the privileges of foreigners, based on the Ottoman system of capitulations, 33 and provided jurisdiction for a British judge to intervene in disputes concerning its nationals. 34 Annex Two to the treaty detailed fi nancial arrangements where British-built infrastructure was transferred to the new government of Iraq, while the port of Basra and the railways were retained under British infl uence governed by joint British–Iraqi directorates. 35 Britain also signed a military agreement with the government of Iraq in 1924 36 under which responsibility for internal order and external defence of Iraq would transfer to the government of Iraq by 1928. Th is enabled Britain to maintain free movement of its troops within Iraq in the short term, ostensibly a necessity for Iraq to be able to achieve socio-economic stability.

Superfi cially this treaty formalized a relationship between two sovereign states. In reality, its goal was to facilitate a change from Britain’s position as League of Nations mandate holder for Iraq to its colonial ruler. Th e asymmetrical power relationship and considerations contained in the document could hardly be disguised and, as such, disrupted any notion of this being a treaty concluded between equals. Signifi cant opposition to the treaty, including from King Faysal, was not suffi cient to thwart British eff orts to consolidate control in Iraq. Where agreement could not be achieved through privileging, a series of repressive meas- ures, including the disbandment of opposition parties and newspapers, the use of aerial bombardment of increasingly hostile tribal areas in the mid-Euphrates region, and the imposition of Direct Rule, ensured ratifi cation. A Constituent Assembly was convened in March 1924 and ‘criticism of the treaty dominated the proceedings. Fearing its rejection, Sir Henry Dobbs who succeeded Sir Percy Cox as high commissioner in May 1923, issued an ultimatum stating that, if the treaty were not ratifi ed by 10 June, Great Britain would seek others means of fulfi lling its mandate.’ 37 Th e threat proved successful and the treaty was ratifi ed by a small margin.

Th e treaty’s ratifi cation was followed by adoption of the Organic Law of 1924 (eff ectively a Constitution) 38 and the Electoral Law. Despite considerable opposi- tion, the Hashimite monarchy signed the Organic Law in 1925 and it went into eff ect shortly after. As Tripp observed, this was ‘the outcome of a compromise

³² Ibid. ³³ For a detailed insight into the system of capitulations during the Ottoman period, see R Peters

and B Weiss, Th e Capitulations and the Ottoman Legal System: Perception, Th eory and Practice in the 18th Century (Brill 2005).

³⁴ See Treaty Alliance between Britain and Iraq (n 29) Annex One. ³⁵ Ibid Annex Two. ³⁶ Conversation with Faysal at Aix-les-Bains, Report by Sir J Shuckburgh, CO 730/120/1, 40299

at 2 (12 September 1927). ³⁷ Tripp (n 2) 56. See also M Khadduri, Independent Iraq: A Study in Iraqi Politics Since 1932

(Oxford University Press 1951). ³⁸ For more on this law, see M Khadduri, Independent Iraq, 1932–1958: A Study in Iraqi Politics

(Oxford University Press 1960) 13–15.

Minority Rights in Iraq192

between the British desire for eff ective executive power, exercised by the king, and their recognition of the need to give powerful sections of the emerging Iraqi political society some stake in the new order’. 39 Th e Constitution guaranteed minorities equality before the law, civil, and political rights as well as freedom to use their language and maintain and practise their religious beliefs. 40 During the Mandate, religious communities were given a degree of latitude in conducting their own aff airs evidenced through the various pieces of legislation passed in 1930 and 1931. For instance, Ordinance 24 (1930): ‘authorizes the issue of regu- lations governing the following matters in the Jewish and Arminian Orthodox communities; appointment of President, composition of Councils Committees, election of members of such councils, procedure and mode of settling disputes within the Community’. 41 In a note appended to this law, it was stated, in explanation: ‘Under the law of Iraq the various religious communities have extensive privileges, chief of which is jurisdiction over personal status questions. Disputes among the various parties within each community occassioned the enactment of this law.’ 42

In the context of religion, the laws passed that year also reveal some issues germane to minorities at the time. Th ree regulations were passed in 1930 (Nos 19, 31, and 38), and enabled the provision of free education to all without dis- crimination on the grounds of race and religion. In addition, the regulations provided that:

Th e Arabic language is the language of instruction, except where the local vernacular is another language. Th e syllabus is to be ‘religious knowledge’, Arabic language, math- ematics, geography, history, . . . English language, Arabic penmanship, drawing, handi- work, physical training, singing and the vernacular language of the area if other than Arabic. 43

What emerges here in reference to language, religious knowledge, and religious dress is a mode of legal pluralism. Th us, according to Ordinance Nos 4, 17, and 25, all judges and Qadhis, ‘except those who wear the dress of Muslim jurists’, were compelled to wear a black gown with particular specifi cations, while in court. 44

Ordinance No 70 (1930) is a good example of positive practices in Iraq’s early minority rights law. Addressed specifi cally to the Armenian community, it has been described as the constitution for the Armenian community, enshrin- ing a number of Armenian institutions while detailing their composition and rules. Among the institutions it lists are: ‘(a) Th e Head of the Community; (b) a Spiritual Council; (c) A Lay Council; (d) a General Council, and in the towns of

³⁹ Tripp (n 2) 56. ⁴⁰ Ibid 179. ⁴¹ Review of Legislation (1933) 15 Journal of Comparative Legislation and International Law 3rd

series, 172. ⁴² Ibid. ⁴³ Ibid. ⁴⁴ Ibid 173.

1 History 193

Barsh, Mosul and Kirkuk, of a Church Representative and a Church Assembly’. 45 Th e legislation also specifi es the eligibility of individuals for the offi ce of Head of Community as follows: ‘Th e Head of the Community is to be elected by the General Council and appointed by Royal Irada. He must be an ecclesiastic of the Armenian Orthodox Church, over thirty years of age, an Iraqi subject and held in general esteem.’ 46

In the context of the Jewish Community, Ordinance Law No 77, passed in 1931, recognized specifi c Jewish organizations and communities, including the communities in Baghdad, Basra, and Mosul. A separate Law No 36 was passed, outlining provisions for the Jewish communities living in Basra and Mosul. Each of these communities was entitled to have a President, a Chief Rabbi, a General, and a Lay Council, with the community in Baghdad having, in addi- tion, a Spiritual Council. As with the Armenian legislation, the law laid down the eligibility criteria, rules, and procedures governing institutions. Express provision was made for the establishment of religious courts within the communities, with ‘exclusive jurisdiction over matters relating to marriage, dowry, divorce, separa- tion, maintenance, wills and other personal status matters of Jews who are Iraqi subjects’. 47

Iraqi civil courts, rather than the Shar î’ ah Courts, were mandated to determine the personal status of foreigners, except if the foreigner in question was Muslim. 48 Another ordinance upheld national holidays as Muslim holidays while provid- ing that Christian and Jewish holidays would be considered offi cial holidays for members of those communities. 49

Linguistic rights were the subject of legislation in 1931, with Law No 74 expressly providing for the use of Kurdish and Turkish in courts of law, while ensuring that ‘instruction in all elementary and primary schools shall be the home language of the majority of the pupils of those schools’ and that ‘any per- son shall be entitled to use either Arabic, Kurdish or Turkish in any applica- tion made to the Government in those areas and to receive a reply in the same language’. 50

Although there is a clear minority rights discourse emerging during this period, this must be understood within the wider political and territorial landscape. Th e engagement and protection of minorities served British colonial powers via the strategic privileging of groups calculated to facilitate Britain’s interests in the region. As Tripp noted, there were two sectors of Iraqi society to which the British looked to facilitate their vision of state:

. . . fi rstly the sharifi an and the ex-Ottoman administrative elites for whom the new state of Iraq was the guarantee of their centrality and status; secondly, the notables of a society

⁴⁵ Ibid 176. ⁴⁶ Ibid. ⁴⁷ Ibid 181. ⁴⁸ According to Ordinance 78 of 1931, ibid 176. ⁴⁹ See Ordinance Law No 72 Holidays of 1931, ibid 180. ⁵⁰ Ibid 182.

Minority Rights in Iraq194

increasingly defi ned by property ownership, whose value lay in their dependence on a state which provided them with the means of ensuring social order. 51

British colonial interests were integral to defi ning the territorial remit of the state of Iraq, and to establishing Sunni hegemony within. When combined, this negated the possibility of separate ethnically/religiously homogenous states, while providing a power base for the minority Sunni to impose a brand of Arab nation- alism that contained an imperative for minorities to fi t into the chosen ‘national identity’ or risk being frozen out of important policy discussions concerning their survival within Iraq. ‘Th ese dissenting voices’, as Tripp argues, ‘would not be allowed to defl ect the state from the course allotted to it by those who com- manded coercive and propertied power.’ 52

Th e tensions between British and nationalists’ interests would again become evident when the proposal by the monarchical government in 1924 to create an army by conscription ‘as a tool for defence and national sovereignty on the one hand and as a means to consolidate its own position on the other—provoked a reaction from the British, who preferred a small professional and mobile army’. 53 Th e division between those who supported and those who resisted conscription rested less on sectarian diff erences and much more on emerging tensions between governing elite who ‘saw conscription as the key to the disciplined creation of a new social order to meet the needs of the state, as they themselves defi ned those needs’ and tribal leaders who believed it was an attempt to exert central control and therefore disrupt tribal autonomy. 54 Th e British merely saw conscription as disruptive to their interests and this proved ‘as yet another example of Great Britain’s desire to keep Iraq subservient’. 55

Th e question of the status and integration of Vilayet of Mosul (which was a vilayet of the Ottoman empire) into Iraq was, and continues to be, a centre-point to this debate. Territorially, the Mosul Vilayat was divided into four parts follow- ing British occupation in 1918 and comprised the predominantly Arab, Mosul province, Kurdish Erbil and Sulaimaniya, and Kirkuk, which is predominantly Turkoman. 56 Mosul is a classic example of how it is impossible to think of the minority question in Iraq in the context of linear and binary identities. Populated

⁵¹ Tripp (n 2) 31. What is important to note is that these groups refl ected not only the privileged within Iraqi society at the time but were also drawn disproportionately from the Sunni Arab popula- tion. Although more than 78 per cent of the population at the time were comprised of Shi ‛ a, Kurd, and other smaller minority populations (Turkmen, Yezidi, Jewish, Christian, Sabaean), those who held infl uential government posts and senior army offi cers were drawn almost exclusively from the Sunni population, which was comprised of only about 20 per cent of the population at the time.

⁵² Tripp (n 2) 31. ⁵³ Lukitz (n 7) 16. Lukitz characterizes this as a ‘Sunni government proposal’ which is, in fact,

incorrect. Th e then monarchical government was comprised of both Sunni and Shi ‛ a and there was plenty of dissent on both sides for the conscription policy.

⁵⁴ Tripp (n 2) 60. ⁵⁵ Ibid 61. ⁵⁶ Duhok was created in 1970 as a third dominantly Kurdish province.

1 History 195

mainly by Sunni, the integration of the Vilayet into Iraq was, on the one hand, an attempt to address the Sunni–Shi ‛ a population dynamic. On the other hand, the Sunni of Mosul mainly consist of Kurds and Turkoman, ethnically diff erent from the rest of the Sunni of Iraq. 57 Th e Kurds of the Vilayet have maintained claims for autonomy, based on a British promise of such an arrangement during World War I. 58 A secondary claim within the community, externally supported by Turkey, was for the integration of the Mosul Vilayet into Turkey. Th e British hold over the Mosul Vilayet was maintained through armed presence and the League of Nations mandate. 59 Based on the notion of democratic legitimacy 60 and in a genuine eff ort to understand the wishes of the population, the League constituted a formal mission that visited the region in a bid to ascertain the population’s wishes vis- à -vis the future of the province. 61 Having been relatively unsuccessful in its mission, the Commission recommended that Mosul be main- tained within the British Mandate of Iraq for 25 years commencing in 1925. Th is proviso was later overwritten as the assumption grew that Mosul would remain an integral part of Iraq. 62

As in other theatres around the globe, British presence in Iraq had been accom- panied by the lease of air bases in Basra. Th ese were subsequently extended to cover crucial sovereignty questions over Mosul through a political negotiation between Nuri al Sa’id, a prominent political fi gure in Iraq, and Henry Dobbs, then British High Commissioner, towards the end of 1928. 63 From the outset, the negotiations were fraught with diffi culties borne of two distinct and compet- ing agendas: British desire to consolidate power and the push by Iraqi elites to devolve it. Dobbs was aware that any arrangement reached would devolve power to Iraqi political elite, and, while his analysis was disregarded by the Colonial Offi ce, his ‘pessimistic prognosis proved to be accurate’. 64 When it was clear to al Sa’id and others that Iraq was not going to be admitted to the League of Nations in 1928, ‘[t]hese key members of the political elite deployed all means at their disposal to pressure the British into granting them control over Iraq’s political and military aff airs’. 65 Th is action crippled the government for nearly two years

⁵⁷ See CF Robinson, Empire and Elites after the Muslim Conquest: Th e Transformation of Northern Mesopotamia (Cambridge University Press 2000) 24–7.

⁵⁸ H Elis, ‘Th e Kurdish Demand for Statehood and the Future of Iraq’ (2004) 29 Journal of Social, Political, & Economic Studies 191–209. For a detailed analysis of the British discussions in Iraq at this time, see Tripp (n 2) 30–76.

⁵⁹ Tripp (n 2) 30–76. Also see Gelvin (n 22). ⁶⁰ See TM Franck, ‘Th e Emerging Right to Democratic Governance’ (1992) 86 American Journal

of International Law 1. ⁶¹ For how the issue was seen at the League of Nations, see FP Walters, A History of the League of

Nations (Oxford University Press 1952) vol I, 305–10. ⁶² See Foster (n 7) 127–56, which also discusses the resource question in some depth. ⁶³ Minute, JH Hall, CO 730/128/1, no 158047(15 November 1928) and Nuri al Sa’id to

H Dobbs, Personal, Unnumbered, CO 730/128/1 (27 October 1928). ⁶⁴ Dodge (n 2) 34. ⁶⁵ Ibid.

Minority Rights in Iraq196

with an agreement eventually struck in September 1929, suspending the 1927 Treaty, and recommending Iraq’s ‘unconditional entry into the League of Nations in 1932’. 66 Th e deal was concluded during King Faysal’s visit to Britain in 1932 67 and included Mosul within the territorial dimensions of Iraq, providing sovereign bases for the British 68 and gaining British concessions vis- à -vis conscription of minorities into the new Iraqi army. Th e deal, ostensibly, cemented British inter- ests in the region as subsequent support for Iraq’s entry to the League of Nations was tied to Iraq’s signature on a long-term treaty, which maintained British inter- ests in the country. Th e territorial dimension of Iraq was sealed when Iraq applied for and was accepted as a League of Nations member with British support, along the lines of the agreement noted earlier. 69 Th is abrogated the British promise to the Kurds, which had an eff ect extending beyond the frontiers of Iraq. 70

Th us for Iraq, the boundary line that came into eff ect as the uti possidetis de jure line 71 was agreed through negotiation between a privileged minority and the colonial ruler, despite continuing objections from other communities, and despite documented acceptance of the need to ascertain the wishes of the people of Mosul. Th is also occurred after US President Wilson’s famous 14-point address in 1914, during which he resurrected the idea of self-determination and set in train a process through which the League of Nations held referenda in several contested European territories such as the Å land Islands, the Sudentenland, and Tirol. 72

In 1930, two years before Iraq achieved independence, a compact referred to as the Anglo-Iraqi Treaty was signed between the Iraqi Prime Minister, Nuri al Sa’id, and the British High Commission. 73 One aspect of this agreement was the reclassifi cation of the term ‘civilian population’ from its usual context under the Laws of Armed Confl ict to include only ‘armed tribesmen, Shi ‛ a and Kurds’, thus, justifying aerial bombardment of these populations for British interests. 74 Iraq’s acceptance into the League of Nations, becoming one of the fi rst mandates to achieve full independence as a sovereign state, did not signal the end of British

⁶⁶ Ibid 37. ⁶⁷ Th is visit came in the midst of intrigues between France and the UK over the possibility of sover-

eignty for Faysal over Syria as well as Iraq. For more see U Dann, Th e Great Powers in the Middle East, 1919–1939 (Holmes & Meier 1988) 183–95.

⁶⁸ See Tripp (n 2) 65. See also Dodge (n 2) 131–56 for a discussion of the coercive (and despotic) capacity of the State.

⁶⁹ In their application to join the League, the Iraqi government made a number of pledges related to the status of minorities, especially the Kurds. See Jawad (n 9) 6–10.

⁷⁰ Many of these documents have been reprinted in HCM Davis, Some Aspects of Religious Liberty of Nationals in the Near East: A Collection of Documents (Harper & Brothers 1938).

⁷¹ J Castellino, ‘Territorial Integrity and the “Right” to Self-determination: An Examination of the Conceptual Tools’ (2008) 33(2) Brooklyn Journal of International Law 503.

⁷² See A Whelan, ‘Wilsonian Self-determination and the Versailles Settlement’ (1994) 43 International & Comparative Law Quarterly 99.

⁷³ Nuri al Sa’id to Dobbs, Personal, CO 730/128/1 (27 October 1928). ⁷⁴ Lukitz (n 7) 22. See also Humphrys to Simon, Secret, FO 371/16052 E6843/5666/93 CP, no

1157 (15 December 1932).

1 History 197

infl uence in the region nor did it substantially alter the political landscape or politics in Iraq. In fact, Iraq’s colonial past cast a long shadow extending into ‘independence’ and beyond:

Iraq was a territory inhibited by a diverse and divided population run by a small clique of mainly Sunni politicians who could not control the country without the help of British airplanes. Its government and economy were still fi nancially dependent upon the British Exchequer. Th e commitments previously given to the League by both Britain and Iraq concerning the inclusion of and comity among the diff erent ethnic and religious commu- nities were discarded to achieve Iraq’s formal independence as quickly as possible. 75

In characterizing the impact of the Mandate period, there are two primary con- clusions to be drawn. Th e fi rst is to recognize this as a ‘defi ning period’, as Tripp argued, in which the state-building project was rigorously engaged as part of a colonial enterprise. Th e foundation upon which an independent Iraq emerged had a distinctly British watermark. Even severed from its colonial past, this ‘new’ Iraq did not shed its colonial skin. Vestiges of British policy remained not only in who continued to control sites of power and draw privileges from the state, but also in the growth of ‘sectarian’ discourse, cultivated under the Mandate period, that began to exert pressure over the body politique in Iraq.

Second, this is also the period when the narrative of the ‘other’ was planted and cultivated. With the British Weltanschauung fi rmly imprinted, the Ottoman Empire was portrayed as ‘Oriental Despotism’ and Iraq portrayed as fractured. Th us, ‘European orientalist imagination was the means by which a normative vision of European was used as a standard by which to judge the non-European world. It allowed societies external to Europe to be divided into two broad catego- ries: those judged to be immature and those condemned as pathological.’ 76 Such a narrative continues to infl uence current ‘Western’ perceptions of the Middle East.

Despite the lingering physical presence and historical hangovers of the Mandate period, a democratic political culture did emerge between 1921 and 1958 under the H ā shimite monarchy. Th is is not to suggest that Iraq was a democratic state with free and fair elections, proportional representation, freedom of the press, etc. Yet, King Faysal ‘sought a more consensual form of government’ 77 and, in doing so, the existing political system provided space for political exchanges between parties and cabinet ministers. What was more telling during this period, however, was the political awakening of civil society in Iraq. Th e emergence of what would come to be called the Ahali group 78 and the establishment of the Baghdad club are just two examples of an emerging critical voice within Iraqi civil society that

⁷⁵ Dodge (n 2) 31. ⁷⁶ Ibid 45. ⁷⁷ Tripp (n 2) 77. ⁷⁸ Th ese were a group of primarily young intellectual and professionals who drew their name from

the newspaper Al Ahali , which fi rst appeared in 1932 and with which they were all in some way associated.

Minority Rights in Iraq198

would provide space for debate and challenge existing status quos, especially the privileged positions of landowners in Iraq. Th e 1958 revolution that overthrew the monarchy ushered in Iraq’s fi rst ‘non-sectarian’ government. Within the state apparatus that was formed under the new leadership of General ‘Abd al-Karim Qasim:

. . . there was no discrimination . . . against particular ethnic groups, even if the lower echelons continued to refl ect patterns of recruitment from the monarchical era. Indeed, Qasim’s regime made a conscious eff ort to increase the representation of groups that had heretofore been discriminated against and to downplay tribal and sectarian criteria in political recruitment. 79

Under Qasim, Iraq would experience a signifi cant growth in civil society and, as Davis noted, ‘even if this civil society was constrained . . . there was nevertheless a tremendous burst of associational activity, especially during the fi rst two years of the revolution’. 80 If we are to read these particular years as the nascence of an emerging and distinctive Iraqi state, then it is from 1963, when the Ba ‛ thist party fi rst seized power, that its long and painful decline could be charted. 81 With the ascendancy of the second Ba ‛ thist regime in 1968, sectarianism became a fi rmly fi xed strategy of the state, and minorities found themselves at the sharp end of repressive state policies. 82

Th at the underpinnings of sectarianism in Iraq cannot be understood through an ethno-confessional lens, but rather as an outcome of state policy, is perhaps best illuminated during the Ba ‛ thist era in Iraq. When Saddam Hussein deposed Ahmad Hasan al-Bakar in 1979 and assumed the Presidency, a carefully crafted state sectarian policy emerged. Hussein’s policy for creating a centralized and controlled power base internally and in the region was constructed around the promotion of sectarian identities; in this divide-and-rule policy minority com- munities became collateral damage.

Fearing ‘corruptive’ infl uences of the Islamic revolution, Saddam Hussein played the sectarian card in the lead up to the 1980 invasion of Iran. As Dawisha argues:

President Saddam Hussein of Iraq felt so threatened by Ayatollah Khomeini’s calls to the Iraqi population to overthrow the ‘non-Islamic, infi del rulers of Baghdad’, that he went to war against those ‘using religion to foment sedition and division among the ranks of the Arab nation’. 83 Indeed, the transnational Islamic magnetism was so powerful, that

⁷⁹ Davis (n 2) 143. ⁸⁰ Ibid. ⁸¹ Th at said, even under the second and quite brutal Ba ‛ thist regime (1968–2003), Iraqi political

cultural was anything but dormant. One of the strengths of Iraq’s ethnic and cultural diversity, to which we referred earlier, was that it disabled the regime’s ability to completely extinguish the politi- cal culture that had been cultivated by Iraqi civil society.

⁸² For more on the Qasim period, see U Dabb, Iraq under Qassem: A Political History, 1958–1963 (1st edn, New York: Praeger 1969).

⁸³ Al-Th awra (Baghdad), 18 September 1980 cited in A Dawisha, ‘Comprehensive Peace in the Middle East and the Comprehension of Arab Politics’ (1983) 37(1) Middle East Journal 46.

1 History 199

only through an invocation of Arab nationalist symbolism—an appeal to the ‘Arab’ Iraqis to re-create the ‘battle of Qadisiya’, when in 637 AD the Arabs defeated the Sassanid Persians—could the Iraqi leaders hope to neutralize Iran’s undoubted Islamic appeal. Th ese instances are perhaps a microcosm of the broader context of regional politics in which Arabism and Islam play a central role. 84

Hussein’s invocation of historical and visual imageries 85 was intended to suggest that Iraq’s Shi ‛ a population’s loyalty lay with their Shi ‛ a confessionalist kin in Iran. Th e 1990s saw the promotion of religious and sectarian identities dominate Ba ‛ thist discourse, signalling less a shift of policy, than of economic circumstance: an economy of sectarianism was written during this period. In the wake of the devasting eight-year war with Iran and the 1990–1991 Gulf War, where Iraq suff ered signifi cant defeat, the subsequent intifada , 86 and the imposition of harsh UN economic sanctions, 87 the use of divide-and-rule policies formed part of Saddam Hussein’s endeavour to retain power and curb internal dissent. Whatever the intent of American policy toward Iraq during this period, its myopic reading of Iraqi history had a devasting impact on Iraqi civil society:

From 1991 until 2003 the eff ects of government policy and the sanctions regime led to hyperinfl ation, widespread poverty and malnutrition. Th e historically generous state wel- fare provision that had been central to the regime’s governing strategy disappeared over- night. Th e large and well educated middle class that had grown in the years of plenty to

⁸⁴ Dawisha (n 83) 46. ⁸⁵ For an excellent discussion on Hussein’s use of visual politics in Iraq, see K Makiya, Th e

Monument Art and Vulgarity in Saddam Hussein’s Iraq (IB Taurus 2004). ⁸⁶ Arabic word meaning uprising or upheaval. Th ere have been a number of intifadas in Iraq: in

1952 one that was centred primarily around electoral reforms; in 1977, when Shi ‛ a discrimination under the Ba ‛ th culminated in a large demonstration by the al-Da’wa and other Islamist organiza- tions; and the 1991 intifada referenced here. Th e March 1991 intifada was again based predominately in the large Shi ‛ a cities of Basra, Nasiriyya, Najaf, Karbala, and ‘Amara. As in the 1977 demonstra- tions there are indications that there was infl uence by the al-Da’wa and other Islamist organizations (who were operating mainly underground). Th e demonstrations have been described as organic and springing from a deep resentment, indeed hatred, of Saddam Hussein’s regime. Th e uprising was short-lived and ended with vast numbers of Iraqis seeking refuge across the border in Saudi Arabia as well as in Iran. It is estimated that thousands more suspected of partaking in or supporting the rebel- lion were killed or imprisoned.

⁸⁷ UN Sanctions in Iraq were initially put in to place in 1990 as a non-military solution to force Iraq’s withdrawal from Kuwait. Yet these short-term goals altered and, as one observer notes, ‘After the war, the character and goals of economic sanctions were fundamentally altered’, some of which were unclear. Th e results to Iraqi civil society were devastating: ‘Aid agencies and the United Nations report that during 1994 living standards for the vast majority of Iraq’s 18.5 million people deteriorated markedly—even in Baghdad, which had previously been less aff ected by the post-war crisis. Th e value of the Iraqi dinar (ID) plunged from about 50 per $1 in early 1993 to between 550 and 700 per $1 in late 1994. In September, the government cut subsidized monthly food rations by an aver- age of 40 percent rations that already stood at well below subsistence nutrition levels.’ A UN Food and Agriculture Organization (FAO) report earlier in 1994 described the country as ‘suff ering from pre-famine conditions’. See S Graham-Brown, ‘Th e Iraq Sanctions Dilemma’ (1995) 193 Middle East Report 2, 3.

Minority Rights in Iraq200

form the bedrock of Iraqi society was impoverished. Th e story of Iraq from 1991 until 2003 is of a country suff ering a profound macroeconomic shock. 88

Th e loss of oil revenue deprived Saddam Hussein of loyalties through economic privilege, forcing him ‘to concentrate his energies on keeping alive the infor- mal networks of patronage and the security services that underpinned his rule’. 89 His cynical adoption of Islam as a means of articulating authority was expressed through the prohibition of alcohol, instituting a hadd 90 punishment for theft, an increasing intolerance of non-Muslims, and the curtailing of women’s rights. He attempted to interfere with rural tribal structures by limiting or diff using sheikhs’ authority by promoting heads of tribal sub-units or clans ( fakhd ; pl afkhadh ) who began to compete with the authority of the tribe’s paramount sheikh.

Th e eff ect of the socio-economic decline in Iraq had two immediate repercu- sions. Th e fi rst and most obvious was the degree to which Iraqi civil society turned from state-based institutions to religious, tribal and other groups for support; a point analysed shortly. While this has sometimes been interpreted as refl ecting a primordial tendency in support of ethno-confessionalism, this phenomenon is probably better understood as a response to the increasingly desperate material conditions the average Iraqi faced post 1991. As one commentator astutely observed, ‘[t]he upshot of economic sanctions was an impoverished, “atomized” society where daily survival became a priority and where sectarian identity (but not yet action) was ascendant’. 91 Th e second consequence for minority communi- ties was the Ba ‛ thist policy of promoting sectarian identities, encouraging division as a means of maintaining rule. Playing the religious or ethnic identity card to ensure loyalty created a space where Iraq’s minority communities became targets, a depository for articulating and blaming the ills of Iraq’s social and political decline.

Th e devastating eff ects of playing the sectarian card on Iraqi’s minorities are well documented. 92 Under the Ba ‛ thist ‘Arabization’ policy, there were signifi cant displacements of Turkoman and Assyrian communities. Th e Assyrian commu- nity, as discussed below, was particularly impacted by this policy. Th e national censuses conducted in 1977 and 1987 did not provide a category for Assyrians.

⁸⁸ T Dodge, ‘Iraqi Transitions: From Regime Change to State Collapse’ (2005) 26(4) Th ird World Quarterly 705, 709.

⁸⁹ Ibid. ⁹⁰ Hadd crimes are the most serious of crimes that are specifi cally referenced in the Qur’an and

are punishable by a pre-established punishment found in the Qur’an. Th ere is no plea-bargaining or reducing the punishment for a Hadd crime.

⁹¹ B Yousif, ‘Th e Political Economy of Sectarianism in Iraq’ (2010) 4(3) International Journal of Contemporary Iraqi Studies 357, 362.

⁹² A number of reports were issued, including one by Martti Ahtisaari (March 1991), UN Under Secretary-General for Administration and Management, which suggested that the eff ects of sanc- tions that were, at the time of his writing only in place for a year, were ‘near apocalyptic’ (para 8) and that war damage had relegated Iraq to a pre-industrial age in which the means of modern life had been destroyed or rendered tenuous. Th e document can be found at: <http://www.un.org/Depts/oip/ background/reports/s22366.pdf> accessed 12 April 2012.

http://www.un.org/Depts/oip/background/reports/s22366.pdf

1 History 201

Th ose identifi ed as Assyrian were either struck off the registry or reassigned Kurdish or Arab identities. Until 2003, Assyrians living in Iraqi-controlled areas were not allowed to give their children Assyrian names and those that did not ‘choose’ to change their nationality were threatened with loss of employment and expulsion. A 2001 Revolutionary Command Council Decree (199) desig- nated that every Iraqi had the ‘right’ to change their ethnic identity. 93 Th ose who resisted adopting an Arab identity faced forced displacement.

Ba ‛ thist policies towards the Kurds were particularly brutal, largely the result of Kurdish agitations for autonomy and the determination of the regime to ensure that ‘the oil fi elds [in and around Kirkuk] remain outside of Kurdish control’. 94 Under the ‘Arabization’ policy, an estimated 180,000 Kurds were forcibly dis- placed. Although a number of other ethnic and religious minorities in the North, including Yazidis, Mandaeans, Turkoman, Assyrians, and Shabaks, 95 were deeply aff ected, the Iraqi Kurds were the primary target for the al-Anfal Campaign con- ducted towards the end of the Iran–Iraq war (1986–1988) during which villages were destroyed, and signifi cant numbers of minorities, estimated at 200,000, were either killed or forcibly displaced. 96

Th e ‘rapid decline in the offi cial and visible institutions of the state’ 97 and the disruption of tribal authority that accompanied the Ba ‛ thist ascent to power in Iraq marked the twilight of Iraq’s social and political institutions, which reached a critical point in the 1990s. Th is decay was evident in the religious sphere where, as Davis notes, ‘[o]ne of the consequences of Ba ‛ thist rule between 1968 and 2003 was the complete destruction of virtually all secular organisations of civil society’. 98 As secular institutions fell, or were perceived as a challenge to religious

⁹³ See reference to this in report of UN General Assembly, Situation of Human Rights in Iraq, A/57/325 (20 August 2002), 14(9).

⁹⁴ Tripp (n 2) 193. ⁹⁵ A majority of Shabaks identify as Kurds. Th ey are a religious community that ‘speak a dialect of

Kurdish and practice an extremist form of Shi ‛ a Islam. Th ey thus form a distinct ethnic community.’ In one of the earlier (and few) studies on the Shabak, Vinodgradov details: ‘Th e Shabak are a religious community, a Shi ‛ a ta’ifa, or sect, of approximately 15,000 people scattered in thirty-fi ve villages that cluster to the east of the city of Mosul. Th e area is clearly delimited, being bound by the Tigris River, the Great Zab (a tributary of the Tigris), and the Rawanduz mountain range. Th ey speak a Kurdish dialect whose vocabulary includes a large number of Turkish and Arabic words. Th e Shabak live and work as sharecroppers on land owned by wealthy Arab “holy” families from Mosul. Th is hand- ful of families is collectively referred to as sada or ashraf (singulars ayyid , sharif ); the terms are used for all those who claim descent from ‘Ali and his wife Fatima, the daughter of the Prophet’. See AR Vinogradov, ‘Ethnicity, Cultural Discontinuity and Power Brokers in Northern Iraq: Th e Case of the Shabak’ (1974) 1(1) American Ethnolology 207.

⁹⁶ For more on the Anfal campaigns, see D McDowall, A Modern History of the Kurds (IB Taurus 1997) ch 17. Also see Human Rights Watch, Genocide in Iraq: Th e Anfal Campaign Against the Kurds (July 1993).

⁹⁷ Dodge (n 88) 709. ⁹⁸ E Davis, ‘Refl ections on Religion and Politics in Post-Ba‛thist Iraq’ (2008) 3(1) Newsletter of the

American Academic Research Institute in Iraq 13–15, 14.

Minority Rights in Iraq202

authority, religion was to fi nd a public role. 99 For civil society, especially dur- ing the economic decline of the 1990s, religion provided ‘a means of shielding [Iraqis] from the harshness and unpredictability of daily life. Religious institu- tions provided one of the few constants in their live and hence assumed greater signifi cance during the period from 1991–2003.’ 100

When Saddam Hussein’s regime fell, religious institutions, unsurprisingly, remained strong, and religion was engaged in the public domain by state and non-state actors for a variety of purposes. As argued in Chapter 1, Islam is not an actor and Islamic formulations of law have been engaged for diff erent purposes. As Davis argued, there must be a multifaceted reading of the role of religion; it cannot be narrated as a single concept, a point that is especially true in post Ba ‛ thist Iraq where:

. . . the concept of religion assumes diff erent meaning in a wide variety of social and politi- cal contexts. Religion may be understood as piety and devotion, as politicized religion (in both ecumenical and xenophobic/intolerant forms), as expressing communal solidarity, and as a subterfuge for crime . . . [Th ere is a need] to question the often rigid dichotomy that is made between ‘religion’ and ‘secular.’ It is indeed possible for a political actor to be highly religious, yet still act in a manner in which religion and politics are behaviourally separated. 101

In the ‘colonial present’, the fi nal point in Davis’ argument is particularly sali- ent as we look at the question of faith in ‘democracy’ and the debate around the Iraqi Constitution in Section 3. As the political situation in Iraq unfolds, engagement with the concept of minorities with regard to Iraq’s commmunities shifts and changes. Th e balance of state power has shifted from Sunni control to a Shi ‛ a-led government, with practices that suggest that the Sunni—both as a demographic fact and in sociopolitical terms—are now confi ned to minority sta- tus. While national identity is often and, as we have argued, incorrectly contested along Sunni–Shi ‛ a or Kurdish fault-lines, the plight of minority communities is over-shadowed by the dominance of stronger groups. Th ese include diff er- ent Christian communities, Turkoman, Yezidis, as well as smaller indigenous populations such as the Marsh Arabs. It has been suggested that many of these communities accepted Iraqi national identity, with one notable exception—the Assyrians, a Christian minority originating in Turkey. 102 Th at said, the recon- testation for Iraqi political space has exposed Iraq’s minority communities to precarious political terrain.

⁹⁹ As was the case with the rise of the Iraqi Communist Party, and the counter push by Shi ‛ a clerics in establishing the Da’wa party. ¹⁰⁰ Ibid. ¹⁰¹ Ibid 15. ¹⁰² Lukitz (n 7) 5.

2 Identifi cation of Minorities 203

2 Identifi cation of Minorities

Th e question of identity and division in Iraq is not as straightforward as some Western analysts suggest. At least three schisms emerge when attempting to categorize ethno-relgious groupings:

Th e fi rst is ethnic, with the Arab population estimated at 75%, the Kurds at 15–20% and the smaller groups of Assyrians, Turkmens, Armenians, and all others at 5%. Th e second divide is religious: 96% of all Iraqis are Muslims, and of those, 60% are Shia, and 40% are Sunni Arabs and Sunni Kurds. Christians make up most of the rest of the population. Th e third faultline is regional: the Shia live largely in the central and southern region, the Sunni in the north [and west], and the Kurds in the northern highlands. 103

Th ere is no doubt that sectarian identities have been created and nurtured as various power struggles have unfolded throughout Iraq’s history: however, the dynamics are more complicated than generally understood. A closer look at the composition of ethnic/religious communities in Iraq reveals a complicated fabric beyond Sunni–Shi ‛ a divisions:

Iraq’s minority communities include both religious and ethnic groups with some overlap. Th e main Muslim minorities are the Turcoman, who make up 3–4 per cent of the popula- tion and who follow either Sunni or Shi ‛ a Islam, the Faili Kurds, who are Shia Muslims, and the Shabaks, who are predominantly Shia. Muslims make up about 96 per cent of the religious community of Iraq. Th e remainder are mainly Chaldean (who follow an Eastern rite of the Catholic Church), Assyrians (Church of the East or Nestorian), Syriacs (Eastern Orthodox) and Armenians (Roman Catholic and Eastern Orthodox). Religious minorities also include Mandaeans or Sabians, who follow Gnostic traditions, monotheistic Yazidis, Baha’is and a small number of Jews. Iraq is also home to a number of migrant or refugee communities, the largest being the Palestinians, including 15,000 registered Palestinians, some of whom settled in Iraq in 1948, the rest having been born there. 104

Added to these groups are a signifi cant population of Black Iraqis, a smaller but signifi cant community of Kaka’i (a Kurdish sub-group), a small Roma popula- tion (Sunni and Shi ‛ a), and Circassians (Sunnis). Th ese overlapping identities complicate endeavours to isolate religion or ethnicity as the conceptual prism through which to understand the sectarian violence that dominates Iraq’s socio- political landscape. While there is no doubt that Sunni–Shi ‛ a tensions exist

¹⁰³ M Mutua, ‘Th e Iraq Paradox: Minority and Group Rights in a Viable Constitution’ (2006– 2007) 54 Buff alo Law Review 927, 932. Whilst proportionately, it is accurate to note that Arabs are the largest group, it is important to note in this context that the only available, and reliable demo- graphics is found in the 1957 general census, which was undertaken by the Iraqi monarchy. Th e Census did not specify ethnic group but did break down in terms of language, and within this it is possible to argue the Kurdish population would be between 16 and 17 per cent. Secondary literature that further specifi es ethnic breakdowns must be read in this context. ¹⁰⁴ P Taneja, Assimilation, Exodus, Eradication: Iraq’s Minority Communities since 2003 (Minority

Rights Group International 2007) 3.

Minority Rights in Iraq204

inside and outside Iraq, the complexities and fractious nature of politics within the diff erent Sunni and Shi ‛ a groups undermines any notion that either Sunni or Shi ‛ a are monolithic. 105 Further, the Sunni–Shi ‛ a composition of ethnic and tribal groups disrupts any attempt to attribute sectarian violence along purely religious divides. 106

Th e aftermath of the 2003 invasion and deposition of Saddam Hussein has seen signifi cant demographic changes throughout the state. Th reatened minori- ties have fl ed or are internally displaced, often to regions where they face assimila- tory pressures. 107 Th e full extent of this process remains unclear. In 2010 it was announced that the Central Organisation of Statistics (COS) would undertake a census which, when complete, would provide insight as to the extent of the ero- sion of Iraq’s minority communities. Th e last comprehensive census was under- taken in 1987, with another undertaken in 1997 excluding the governorates of the Kurdistan region—Sulaimaniya, Erbil, and Duhok. Th e proposed census has stalled awaiting a cabinet council decision, 108 and unless COS is able to under- take its mission, the outcome remains in doubt given resistance to the idea, making it diffi cult to gauge the accuracy of demographics concerning certain communities. Th e data in the public domain estimates the current population of Iraq’s ethno-religious groups as follows: Twelver (Ithna’ashari) Shi ‛ as (60–65 per cent); Sunni Arabs (20 per cent, although estimates vary greatly and are con- tested); Christians (3–5 per cent; 500,000–750,000); Kurds (15–20 per cent); Turkomans (3 per cent); Chaldeans (750,000); Assyrians (225,000); Yezidis (500,000); Sabian Mandaeans (3,500–5,000); Faili (Shi ‛ a Kurds) (120,000); Shabak (200,000); Roma (60,000); Palestinian refugees (13,000); Sarliya-Kakaiya (200,000); Baha’i (2,000); and Jews (20). 109

If accurate, these fi gures suggest a signifi cant impact on Iraq’s demographics. Drawing on data extrapolated using the last offi cial census data, combined with UNHCR fi gures tracking internally and externally displaced persons, it is possi- ble to gauge the eff ect of the ongoing security situation and the use of a sectarian strategy on many of the communities in Iraq.

¹⁰⁵ Th ese diff erences we note are borne out when looking at the various intra-group strug- gles between Shi ‛ a over oil (in the South), and for Sunni Arabs, the struggle between the ‘Anbar Awakening’ tribal confederation ( Sahwatal-Anbar ) and al-Qa’ida, likewise, challenges any notion that we can understand Iraq’s internal struggles solely as a Sunni–Shi ‛ a divide. ¹⁰⁶ It is worth noting that Saddam Hussein’s elite Republican guard were comprised of both Sunni

and Shi ‛ a. ¹⁰⁷ See United States Department of State, Report on International Religious Freedom. Iraq (17

November 2010). ¹⁰⁸ See, Central Organization for Statistics of Iraq: <http://www.cosit.gov.iq/english/cen_activities.

php> accessed 29 November 2011. ¹⁰⁹ Numbers were compiled from a number of sources including: Internal Displacement

Monitoring Centre, Internal Displacement: Global Overview of Trends and Developments in 2010. Iraq (23 March 2011); UN High Commissioner for Refugees, Background Information on the Situation of Non-Muslim Religious Minorities in Iraq (1 October 2005) and Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples 2010. Iraq (1 July 2010).

http://www.cosit.gov.iq/english/cen_activities.php

2 Identifi cation of Minorities 205

In the remainder of this section, the current status of some of Iraq’s minority communities is outlined. 110

2.1 Th e Kurds

Th e Kurds have been categorized as ‘trapped minority’ in this volume and ana- lysed in Chapter 3. Within Iraq, the 1970 agreement, establishing the principle of administrative autonomy for Iraqi Kurds, 111 is a signifi cant marker in the Kurdish struggle, viewed as an attempt to engender the loyalties and allegiance of Iraqi Kurds to the project of building a pan-Iraqi national identity. However, as Lukitz suggests, this agreement was pragmatic in its essence, and while instrumental in preserving elements of Kurdish culture and dampening separatist intent, it remained a political settlement, 112 located in the temporal context in which it was framed, rather than an instrument that defeated separatism. Th e subsequent treatment of Kurds under Saddam Hussein clearly antagonized, rather than sedated, such sentiments. Kurdish cooperation and alliance with forces outside of Iraq (Iran and Israel) both during and after the 1970 settlement would also contribute to these antagonisms. 113

As noted earlier, the larger categories of ethno-religious groupings have cross- cutting identities. So, while ethnically and linguistically the Kurds include the Failis, Kaka’i, the Yezidis, and Shabaks, 114 these groups are nonetheless diff erenti- ated from the larger Kurdish group by their religion.

2.2 Faili Kurds

Faili is an Arabic term, given to a group of Kurds from a region of the Zagros Mountains straddling the Iran–Iraq border. Th e Failis are Shi ‛ a Muslims by

¹¹⁰ Th is is not an exhaustive audit. We have selected groups for which we were able to secure what we believe to be relevant and credible information. ¹¹¹ Lukitz (n 7) 5. ¹¹² Ibid 6. ¹¹³ McDowell notes that this cooperation with Iran was particularly acute between 1963–70, until

a Peace Accord was made between Saddam and Kurdish Democratic Party (KDP), under which Kurdistan’s autonomy was granted. Th e Accord was made at a particularly vulnerable time for the Ba‛thist party and it was perhaps unsurprising that when this changed, the Peace Accord did not hold. An attempt on the life of the then leader of the KDP, Mustafa Barzani and the failure of Saddam Hussein to honour the Accords on Kirkuk and the disputed territories contributed to the collapse. In 1975 Saddam Hussein and the Shah of Iran made a bilateral agreement that stated in return for the return of the Shatt-al-Arab waters the Shah agreed to withdraw his support from Mustafa Barzani. At the time both the United States and Israel were allies of the Shahs (against the Arabs) and they also withdrew support for the Kurdish nationalist movement. Barzani’s return to armed struggle was the fi rst of a number of strategic mistakes, which also included his trust that the US and Israel would continue to support Kurdish opposition. See D McDowell, A Modern History of the Kurds (IB Taurus 2003) 320, 338, 476. ¹¹⁴ Th e idea that Shabaks are ethnically Kurdish is contested. We note this but have loosely

attached this group to the wider Kurdish community as this division is refl ected within the Shabak community.

Minority Rights in Iraq206

religion (Kurds are predominantly Sunni) and have lived in Iraq since the Ottoman era. Th ey inhabit territory along the Iran–Iraq border in the Zagros Mountains, as well as parts of Baghdad. Before the rise of the Ba ‛ thist party, Faili Kurds were politically active and prominent in business and trade, with one Kurdish Faili becoming a member of Baghdad Chamber of Commerce 115 in the 1960s. Faili Kurds were often labelled as ‘Irani’, a problem that can be traced back to the time of the Iraqi monarchy (1921–1958) when they were fi rst refused Iraqi national- ity as the monarchy viewed them as mainly immigrants from Iran. Under the fi rst republican regime (1958–1963) some Faili Kurds were naturalized but the rest were refused Iraqi nationality. Under the Ba ‛ thist regime, they were targeted for political reasons, as many Faili Kurds were members of the Iraqi Communist Party and (later) the al-Da’awa party, 116 which were viewed as anti-Ba ‛ thist. As a result of these political alliances, Decree 666 117 stripped Faili Kurds of Iraqi citi- zenship, and many were expelled to Iran. Th ose who remained are among some of the 130,000 stateless persons in Iraq, though this was partly mitigated by changes to the Nationality Law of 2006, 118 which allowed some Failis to restore their citi- zenship rights. 119 For those expelled, the situation remains grim. In reporting on Iraqi refugees in Iran, UNHCR estimated that, in cities such as Azna in western Iran, nearly 65 per cent of refugees were Faili Kurds, many under the age of 20, born in refugee camps. 120 Th e current situation in Iraq has made it diffi cult for Failis to return to Iraq: a UNHCR Assessment of Iraqi Asylum seekers in 2009 reported that, within Iraq, ‘Shabak, Turkmen and Faili Kurds, who primarily adhere to the Shi’ite branch of Islam, have been targeted by Sunni Islamists on the basis of their sectarian identity’. 121

2.3 Kaka’i

Th e Kaka’i 122 community in Iraq, estimated at 200,000, lives primarily in and around villages in the South East of Kirkuk in Northern Iraq. Th ough ethnically

¹¹⁵ Th e Chamber was established in 1926 by Iraqi, Arab, and Jewish merchants. or Islamic Dawa Party is one of two Shi ‛ ite parties (the other is the ةيمالسإلا ةوعدلا بزح ¹¹⁶

Supreme Iraqi Islamic Council) that forms part of the United Iraqi Alliance. It is headed by Nouri Kamil Mohammed Hasan al-Maliki, who is the current (as of 2012) Prime Minister of Iraq. In the 2010 Parliamentary Election, the Dawa party ran under the umbrella of the State of Law Coalition and secured the second largest block of votes. ¹¹⁷ See reference to this in UN High Commissioner for Refugees, Chronology of Events in Iraq,

December 2003 (March 2004). ¹¹⁸ Iraqi Nationality Law (Iraq), Law 26 of 2006, 7 March 2006 available at: <http://www.unhcr.

org/refworld/docid/4b1e364c2.html> accessed 22 May 2012. ¹¹⁹ Danish Immigration Service, Security and Human Rights in South/Central Iraq (10 September

2010). ¹²⁰ MH Verney, ‘Faili Kurds: Expulsion, A Forced March, And the Loss of Nationality’ (2004) 1

(134) Refugees 11, 12. See also Refugees International, Nationality Rights for All: A Progress Report and Global Survey on Statelessness (11 March 2009) 50. ¹²¹ UN High Commissioner for Refugees, Eligibility Guidelines for Assessing the International

Protection Needs of Iraqi Asylum-Seekers (April 2009). ¹²² Sometimes referred to as Ahl-e Haqq.

http://www.unhcr.org/refworld/docid/4b1e364c2.html

2 Identifi cation of Minorities 207

Kurdish, the Kaka’i have their own mother-tongue (Macho). Kakaism is close to Yazidism though not considered heterodox by Muslims, and was born out of a confl ict during the Umayyad period between its rulers and Zoroastrian priests. Th e practices and beliefs of the Kaka’i, which combine Shi’ism and Zorastrianism, forbid cursing Satan, which has led some Muslims to refer to the Kaka’i as devil worshippers. As a result of this perception and their Kurdish ethnicity, the Kaka’i have been subject to threats, kidnapping, and assassinations, mainly in the Kirkuk area. UNHCR has noted that, along with other non-Muslim minority groups, the Kaka’i have been ‘targeted by Islamic extremist elements . . . as “infi dels”, [and] are also perceived as supporters of the MNF-I [Multi-National Force in Iraq] and/or the Iraqi administration and are therefore additionally targeted’. 123

2.4 Shabak

Th e Shabak live primarily in Northern Iraq, in the Nineveh Plains area of Nineveh governorate, with a smaller community in Mosul since 1502. Th is region is his- torically the home of Iraq’s Christian and Yazidi communities. Shabaks are a mix of Shi ‛ a and Sunni Muslims, and number between 200,000 and 500,000. 124 While the community has been recognized as an ethnic group in Iraq since 1952, Kurdish offi cials do not recognize them as distinct, viewing them instead as Kurdish. Th e Shabak community itself seems divided on this issue, though Shabaks are culturally distinct from Kurds and Arabs. Th ey possess their own traditions and language, a mix of Kurdish, Arabic, Turkish, and Farsi. Kurds generally view the question of the identity of the Shabak (and Yazidis) as politi- cally motivated. Both communities reside in the Nineveh governorate, the ter- ritorial control of which is currently under dispute between the Kurdish Regional Governorate (KRG) and the central Iraqi government. Th e KRG have claimed that parts of the governorates of Nineveh, Kirkuk (Tamim), Salah al-Din, Diyala, and Waset are historically Kurdish and have endeavoured to annex these into KRG control, making their presence politically relevant. 125 Th e minorities living within these areas,

. . . including non-Muslims and ethnic Shabak and Turkomen, have accused Kurdish forces and offi cials of engaging in systemic abuses and discrimination against them to fur- ther Kurdish territorial claims. Th eir accusations include interfering with minorities’ vot- ing rights; encroaching on, seizing, and refusing to return minority land; conditioning the provision of services and assistance to minority communities on support for Kurdish

¹²³ UN High Commissioner for Refugees (n 121). ¹²⁴ Th e actual fi gures for the Shabak community are disputed and, as the International Crisis Group

has reported, attempts to conduct a census have been disrupted by a confl ict between the Kurdish and local authorities as to who would carry out the census. Shabak leaders report their numbers between 400,000 and 500,000. See United States Department of State (n 107). ¹²⁵ International Crisis Group, Iraq and the Kurds: Confronting Withdrawal Fears (28 March 2011)

103 Middle East Report 12.

Minority Rights in Iraq208

expansion; forcing minorities to identify themselves as either Arabs or Kurds; and imped- ing the formation of local minority police forces. Th e minorities also accuse both Arab and Kurdish offi cials of ignoring these vulnerable communities as they focus on their fi ght for territorial control. 126

Th e Iraqi Minorities Organization (IMO), Minority Rights Group International’s partner organization in Iraq, reported the arbitrary arrest and detention of mem- bers of the Shabak community by Kurdish peshmerga and militia and attacks on the community. Members of the community allege this is in an attempt by the KRG to assert control in the area. 127

2.5 Yezidi community

Th e Yezidi religion, believed to be over 4,000 years old, is orthopraxic and has ele- ments of other religious practices. 128 Yezidis believe in a Creator God and Malak Ta’us (Peacock Angel) as executive organ of divine will. Th ey live under hierarchical political and religious structures resulting in a type of caste system. Yezidis believe they are descended from Adam and not Eve, and, therefore, are diff erent from other humankind. Th is impacts how they engage with members of their own community and with members of other communities. Typically, Yezidi communities are closed, it is not possible to convert to the faith, and marriage with other non-Yezidis is prohibited. While the Yezidis enjoyed infl uence and control under the Ottomans in certain regions, especially in the area that is now Turkey, they were subject to religious persecution. 129 As Islam took root, the Yezidis, ineligible for dhimmi sta- tus, became increasingly vulnerable. In 1849, they were given formal protection under Ottoman Law for the fi rst time, but as the sociopolitical landscape changed in the nineteenth century, so did the level of religious tolerance. Th e Tanzimat reforms, introduced in the mid-1800s and discussed further in the next chapter, restructured and regulated land ownership and centralized the administration of the state over issues such as personal law, education, and conscription. While the reforms benefi tted minority communities in areas such as education, land recon- fi guration disrupted tribal hierarchies, and for those groups that resisted ‘reform’, compliance was coerced. During this period, British diplomatic correspondence detailed increasing levels of religious intolerance, particularly Muslim–Christian tensions, including attacks and fatwas on Christian minorities. 130 Th e Yezidis

¹²⁶ United States Commission on International Religious Freedom, Annual Report 2011.Countries of Particular Concern: Iraq (28 April 2011). ¹²⁷ Minority Rights Group International, Still Targeted: Continued Persecution of Iraq’s Minorities

(10 June 2010) 18. ¹²⁸ Including Nestorian Christian, Jewish, Muslim, Zoroastrian, Manichaean, and pagan. ¹²⁹ Some within the Muslim leadership viewed Yazidi beliefs as a threat and became increasingly

intolerant of their practices. ¹³⁰ Th ese tensions were noted in a series of dispatches from British diplomats 1873–1878. Th ese are

included in a collection edited by B Destani, Minorities in the Middle East 10 Volume Set: Christian Minorities 1838–1967 (Cambridge Archive Editions 2007).

2 Identifi cation of Minorities 209

became targets of militant Sunni and Kurdish tribal leaders, 131 as well as Ottoman offi cials, 132 throughout the nineteenth and early twentieth centuries, under the British Mandate and in the early ‘independence’ period. During the latter period, many Yezidis took refuge in Georgia and Armenia. While the community is dispersed throughout Europe, North America, Georgia, Armenia, Syria, 133 and Turkey, Northern Iraq is considered to be the Yezidi’s homeland. While ethnically and primarily 134 linguistically Kurdish, the heterodox Yezidi religious practices are distinct from other Kurds.

Th e Yezidis resisted British and subsequent Iraqi endeavours aimed at central- izing their administration. Th is was particularly manifest in resistance to con- scription, also viewed with suspicion by Shi ‛ a and Kurds whose tribal rebellions were subdued. 135 Yezidi resistance to conscription proved harder to quell since it was perceived within the community as a direct threat to their traditions and beliefs. Th e modalities of conscription would place them in close quarters with non-Yezidis, breaking the normally closed ties. In addition, Bedouin tribes were starting to encroach on traditional Yezidi pastoral lands and the possibility of losing grazing pastures through conscription was believed to endanger their abil- ity to maintain control over these areas. Th e Yezidis living in the Mount Senj â r region revolted in 1935, and while governmental forces gained initial success, the Yezidis continued to resist. Th e government’s refusal to agree collective conscrip- tion on cultural grounds sustained the resistance and:

. . . led to the declaration of martial law in the area and to an outbreak of fi ghting in October 1935 which ended in the victory of the government forces. Some hundreds of Yazidis were killed and imprisoned and a dozen or so villages were destroyed. However, the government victory was a hollow one. Yazidis continued to evade conscription and, when pressed by government security forces in the coming years, either resisted with force or simply migrated across the border into Syria. 136

Th e Ba ‛ thist period proved particularly precarious for many communities and even though the Yezidis lived in isolation to a large extent, they were not exempt from Saddam Hussein’s security forces. Th eir strategic location in the moun- tainous Senj â r regions made them vulnerable to Saddam Hussein’s attempt to control the region against Kurdish separatists by a policy of Arabization. While Yezidis were mainly ethnically and linguistically Kurdish, as noted, they were not uniformly Kurdish nationalists, so while some supported the Kurdish national

¹³¹ For example, Moh á ammed Beg of Rowanduz (1832) and Bedir Khan Beg (1840s). ¹³² Omar Wahbi Pasha. ¹³³ Th ere is no exact fi gure on the number of Yezidis living in Syria but Minority Rights Group

International indicate that their numbers have declined as many have converted to Islam. What com- munities remain can be found in the north-east of Syria in Aleppo and Hasaka, and in the north-west in Jabal Sim’an and the Afrin valley. ¹³⁴ Th ere are a small number of Arabic-speaking Yezidis living in the villages of Ba’æiqa and

Bah á z â n ê (Northern Iraq). ¹³⁵ Tripp (n 2) 81. ¹³⁶ Ibid 85.

Minority Rights in Iraq210

movement, others served on the Iraqi side in the Iran–Iraq war. Th e endeavour to force Yezidis to assume a sectarian identity for political purposes was strong:

As part of the ‘Arabization’ campaign, many Yazidis were forced to identify themselves as Arabs, while they were not entitled to any minority rights. At schools, Yazidi religious education was prohibited and the Yazidis, which mostly lived in areas under control of the central government, could no longer practice their religion without restrictions. During the 1970s and 1980s, many Yazidis were forcibly relocated from their traditional areas of settlement into so-called ‘model villages’ in order to ensure better control by the former regime. After the Kurdish uprising in 1991 and the de facto autonomy of the three Northern Governorates, the Lalish valley, the holiest Yazidi site, was included into the Kurdish-administered area, thereby physically separating the majority of the Yazidis from their holy places. 137

Like other minority communities in Iraq, the Yezidis have been left vulnerable to the sectarian violence that has captured Iraq’s landscape since March 2003. Reports issued by Minority Rights Group International, UNHCR, Yezidi organi- zations and other NGOs document that, since the 2003 military intervention, religious persecution of the Yezidis has intensifi ed.

2.6 Th e Marsh Arabs

Th e Marsh Arabs’ historical ties to the Marshlands in Iraq extend back 5,000 years. 138 Like the Kurds, they were encouraged to rebel against Saddam Hussein in 1991 in the aftermath of the Kuwait war. Th ese actions triggered harsh and tragic responses from the regime. A major drainage work was undertaken in the region, destroying the marshes and impacting the livelihoods 139 of the community.

Th e Marshes were historically beyond the writ of Baghdad: a zone outside law that provided refuge to bandits and other refugees from the regime. 140 Saddam Hussein’s regime was not the fi rst to control the territory: the British and subse- quently British companies actively sought to drain the Marshlands between the 1940s and 1970s, ostensibly to engage in irrigation projects to generate agricultural opportunities. 141 Commenting on Saddam Hussein’s motivation, 142 Clark states:

¹³⁷ See UN High Commissioner for Refugees, Background Information on the Situation of Non-Muslim Religious Minorities in Iraq (1 October 2005) 7. ¹³⁸ For more on the demography of this community see E Coast, ‘Demography of the Marsh Arabs’

in E Nicholson and P Clark (eds), Th e Iraqi Marshlands: A Human and Environmental Study (Politico/ Amar International Charitable Foundation 2002) 19–35. ¹³⁹ For the extent to which the livelihood of the community contributed to its income earning

potential see, A Tkachenko, ‘Th e Economy of the Iraqi Marshes in the 1990s’ in Nicholson and Clark (n 138) 36–63. ¹⁴⁰ See Nicholson and Clark (n 138) xii. ¹⁴¹ Ibid xiii. ¹⁴² Th e details of Saddam Hussein’s campaign are discussed in C Mitchell, ‘Assault on the

Marshlands’ in Nicholson and Clark (n 138) 64–100.

2 Identifi cation of Minorities 211

Th e construction of dams, the forcible migration of communities, the draining of the Marshlands that was carried out in the 1990s was an extension of earlier trends. However, an obsession for security drove the agenda. By depopulating the Marshlands, by reduc- ing the area of desert, the region was no longer able to provide a sustainable refuge for dissidents. Saddam Hussein was able to impose his own will on the refractory people of the Marshlands. Th e drainage was carried out with no regard to international obligations concerning water rights and the environment. Th e interests and wishes of the people most aff ected, people with greatest expertise on dealing with the development of the region, were ignored. Th e Marsh Dwellers had limited options. Like hundreds of other Iraqis they could submit to compulsory resettlement in an environment not their own. Or they could leave the country as refugees, as about 200,000 did. Or they could remain in the drained Marshlands, deprived of their inherited water-based means of livelihood. 143

2.7 Christians

Th ere has been signifi cant literature focussing on the plight of the Iraqi Christian community. While the concerns raised are credible and the situation for Iraq’s Christians is, without doubt, critical, some reports are simplistic, situating reli- gion at the core and endeavouring to frame understanding within a fl awed eth- no-confessional model. Th is approach confers a role for Islam in contemporary events and needs to be challenged. Th ese are political actions taken by political actors and must be understood as such. Islamic formulations of law and author- ity are neither fi xed nor stable and actors can and do use legal justifi cations for political and criminal actions. Th e infl uence of externally driven sectarian entre- preneurs throughout the history of Iraq and the region is well documented and has set the framework for how diff erences have been managed and encouraged in Iraq. As Murre-van den Berg observed, while religious tension has so often been cited, there is not one single factor that can fully explain the violence against Christians in the Middle East. In fact, as she notes, there are three historical intersections that merit consideration:

. . . the genocide of the First World War, the fl ight from Iraq in 1933, the 1970s and 80s in Tur Abdin and the present situation in Iraq, each are the outcome of a very specifi c, contin- gent historical situation, each of which needs its own detailed analysis. Th e most common factor is that of the destabilizing eff ects of war or economic crisis, causing existing bounda- ries between communities to be sharpened or new boundaries to be created. Put diff erently, as much recent research into the history of the Middle East has shown, the immediate cause of such violence is always connected to very concrete, local, socio-economic and political circumstances, often in combination with larger geo-political confl icts. 144

What is not in dispute is that whatever the current fi gure, the population of Christians in Iraq has dramatically declined. Th e 1987 census enumerated 1.4

¹⁴³ Nicholson and Clark (n 138) xii–xiii. ¹⁴⁴ HL Murre-van den Berg, ‘Globalisering, christendom en het Midden-Oosten (Globalization,

Christianity and the Middle East)’(Inaugural lecture, University of Leiden 2009).

Minority Rights in Iraq212

million Christians in Iraq, whereas current statistics places the number in the range of 500,000–800,000. Although there is no way of empirically assessing just when (and therefore under what circumstances) this decline occurred, there have been signifi cant waves of Christians leaving Iraq since the 2003 intervention. 145

Th e Iraqi Christian community in Iraq is comprised of Armenians, as well as Chaldo-Assyrians belonging to one of four churches: Chaldean (Uniate), Jacobite or Syrian Orthodox, Nestorian, and Syrian Catholic. Under the Ba‛thist regime, Christians (and Yazidis) were permitted to trade in alcohol, which in the current sociopolitical landscape, has placed them at the sharp end of those professing to enforce ‘Islamic’ ideals. Th eir association with the West, coupled with perceived links to and support from multinational forces in Iraq, have led to the targeting of members.

Christian lobbying for the institution of a quota in the 2009 provincial elec- tions led to the passage of Law No 26, which amended the Electoral Law No 16 (2005) 146 and reserved eight out of 318 seats in Parliament for ‘Iraqi minori- ties’, with a further seven designated ‘national compensatory seats’. 147 Christians were allocated fi ve of the eight seats, one each in the governorates of Baghdad, Ninewa, Kirkuk, Dahuk, and Erbil. Of the remaining three seats, one was allo- cated to the Shabak minority in Ninewa, one to Sabian Mandaeans in Baghdad and one to the Yezidi in the Ninewa governorate. 148 Th e passage of this legislation ushered in a campaign of violence against the Christian community, 149 during which ‘40 Christians [were killed] and [which] displaced more than 12,000 from their homes, while Christian dwellings in Mosul were bombed’. 150 A second wave of violence occurred in the run-up to the March 2010 parliamentary elections, leading to further deaths and internal displacement of Christians.

¹⁴⁵ Since 2003, between 250,000 and 500,000 Christians—or about half the Christian popula- tion—have left the country, according to the UN High Commission for Refugees. Th e diffi culties faced by the Christian population since 2003 is detailed in a publication by UN Assistance Mission for Iraq (UNAMI), 2010 Report on Human Rights in Iraq , January 2011. ¹⁴⁶ For details on election laws within Arab states, including Iraq, see the United Nations

Development Programme’s Programme on Governance in the Arab Region, which has an online data base resource for Arab States: <http://www.undp-pogar.org> accessed 16 March 2012. ¹⁴⁷ Th ese are allotted to the winning lists according to the proportion of seats they receive. ¹⁴⁸ Some of the laws passed by the Iraqi Parliament can be found online through: the Global

Justice Project: Iraq <http://gjpi.org/library/primary/statutes> (note that the authors found some errors in document translations so recommend to use this source in combination with others); the UNDP’s Iraqi legal database <http://www.iraq-ild.org/AboutEn.aspx>; the Inter-parliamentary Union’s database on Iraq <http://www.ipu.org/parline/reports/2151.htm>, and the Iraqi Council of Representatives <http://www.parliament.iq/english/index.php?newlang=english> (although the English website is incomplete) all accessed 29 November 2011. ¹⁴⁹ Community members lobbied the Iraqi Council of Representatives to pass a law that would

have a minority rights clause (quota system in which seats in the Parliament would be set aside for minority communities) in the January 2009 provincial elections. ¹⁵⁰ Minority Rights Group International , Still Targeted: Continued Prosecution of Iraq’s Minorities

(10 June 2010) 5.

http://www.undp-pogar.org

http://gjpi.org/library/primary/statutes

http://www.iraq-ild.org/AboutEn.aspx

http://www.ipu.org/parline/reports/2151.htm

http://www.parliament.iq/english/index.php?newlang=english

2 Identifi cation of Minorities 213

2.8 Armenians

Th e Armenian community consists of adherents to Roman Catholicism and Eastern Orthodoxy. Th eir earliest presence in the region pre-dates the birth of Christ. In the early 1600s, many Armenians were forcibly relocated to Iraq from Iran, though the most signifi cant wave of immigration occurred with the arrival of refugees from Urumiya and eastern Anatolia during the 1915–1918 Armenian genocide perpetrated by Ottoman authorities. 151 Th e population of Armenians in Iraq, estimated at 18,000–20,000, 152 live mainly around Baghdad, with smaller communities in Mosul, Dohuk, Kirkuk, Zakho, Avzrook, in the North, and Basra, in the South. Th e Armenian community has historically not been politi- cally active though they have been targeted alongside other Christians:

. . . Iraqi Armenians have . . . experienced great loss relative to their small total population. Insurgents and paramilitary groups have bombed Armenian churches in Baghdad and Mosul. At least 28, and perhaps as many as 45, Armenian civilians have been killed by ter- rorist violence in Iraq from 2003 to 2007. Similarly, during this same timeframe, at least 28 and perhaps as many as 32 Armenians were kidnapped by insurgents. 153

For the relatively small community the eff ects are acute; some Armenian organi- zations have suggested that up to 3,000 Armenians have fl ed since 2003, a fi gure supported by recent UNHCR reports. 154

2.9 Assyrians

Like other Christian minorities, the Assyrians have a contentious relationship with sites of power. Maintaining a separate cultural, religious, and linguistic identity has historically been at odds with both the pan-Arab and nationalist movements. More than other minorities, the Assyrians are best characterized as refugees—both ideologically and physically. Th eir displacement has been partic- ularly acute since 2003, leading one commentator to warn, in 2008, that ‘Iraq’s indigenous Assyrians are facing cleansing from Iraq if the U.S. Government con- tinues to ignore the crisis and does not take action immediately’. 155 Th e Christian

¹⁵¹ Th ere are a number of writers who have looked at this issue. See, in particular, D Bloxham, Th e Great Game of Genocide: Imperialism, Nationalism, and the Destruction of the Ottoman Armenians (Oxford University Press 2005). ¹⁵² Th is fi gure is largely based on reporting from the community, within and outside of Iraq. See AE

Kramer, ‘Two killed in shooting mourned far beyond Iraq’ New York Times (11 October 2007) and Radio Free Europe/Radio Liberty, ‘Armenians families said fl eeing Iraq’ (23 March 2003): <http:// reliefweb.int/node/122134> accessed 29 November 2011. ¹⁵³ D Logan, ‘A Remnant Remaining: Armenians amid Northern Iraq’s Christian Minority’ (2010)

14 Iran and the Caucasus 143–58. ¹⁵⁴ Th ese fi gures are often not broken down amongst the diff erent Christian groups but the total

fi gure suggests that signifi cant numbers from each of the Iraqi-Christian communities have fl ed Iraq. ¹⁵⁵ M Yourash, ‘Iraq’s Minority Crisis and U.S. National Security: Protecting Minority Rights in

Iraq’ (2008–2009) 24 American University International Law Review 341–75, 342.

http://reliefweb.int/node/122134

Minority Rights in Iraq214

communities’ ongoing internal and external displacement suggests that security for Iraq’s minority communities remains elusive.

Th e exact numbers of Assyrians remaining in Iraq are unclear. A 2011 report by the United States Council on International Religious Freedom notes: ‘In 2003, there were thought to be 800,000 to 1.4 million Chaldean Catholics, Assyrian Orthodox, Assyrian Church of the East members, Syriac Orthodox, Armenians (Catholic and Orthodox), Protestants, and Evangelicals in Iraq. Today, commu- nity leaders estimate the number of Christians to be around 500,000.’ 156

Th e communities are concentrated in Baghdad, Mosul, and villages in north- west Iraq. Assyrians in Iraq have maintained a separate identity as Christians and non-Arabs, resisting conversion and assimilation. 157

Th e Assyrian community were able to establish themselves as refugees with British support. Th e British had a good relationship with this community, consti- tuting some of its members as a separate army (Levies) modelled along the lines of the Indian army. Assyrians, like Indians, became important instruments of colo- nialism. Leading up to Iraqi independence, there were several clashes between the Levies and the Iraqi army, resulting in tensions between Assyrians and the rest of the population, harming the prospect of successful integration. Two other factors weighed heavily in the Assyrian assumption of protection by the British. Th e fi rst concerned the promise extracted by the League of Nations that despite the de facto annexation of Mosul, British presence would be maintained in the region for the subsequent 25 years. Assyrian nationalists felt reassured that this presence would be a source of protection for the community as they found their place in their new home. Secondly, the community was ostensibly protected as a legiti- mate entity through recognition, by the Archbishop of Canterbury, of Assyrians as a Christian minority in the Middle East. Th e League of Nation’s recommenda- tion for the collective accommodation of Assyrians in Northern Iraq made the community believe that eff orts for their protection were underway, despite Iraqi authorities insisting that scarcity of land meant that such a settlement could only be accomplished through confi scation of Kurdish lands. 158

Th e enormity of the challenge of assimilating Assyrians into Kurdish areas was complicated by three factors. First, the two communities had historical enmity. Secondly, the infl ux of Assyrians into Kurdish lands would dilute Kurdish

¹⁵⁶ United States Commission on International Religious Freedom, 2011 Annual Report (May 2011), 89. Assyrian groups (or those focussing on Assyrian issues) have used this fi gure but applied it only to the Assyrian community. See the work of Michael Youash, Director of the Iraq Democracy Project at <http://www.iraqdemocracyproject.org> accessed 16 March 2012. As with other minority communities, exact fi gures are not known and estimates are derived from calculating refugee and IDP fi gures gathered by the UN (and other NGO or associational groups) together with earlier census (or reported) fi gures. ¹⁵⁷ It is interesting to note that, to date, no Arab League member state recognizes the Assyrians as

an ethnic group. Th e Islamic Republic of Iran is the only ‘Islamic’ country to offi cially recognize the Assyrian status and to allow Assyrians to participate in the parliament as a minority community. ¹⁵⁸ Lukitz (n 7) 25.

http://www.iraqdemocracyproject.org

2 Identifi cation of Minorities 215

majorities in the region, and was viewed with suspicion by Kurds already con- cerned over their integration within Iraq and the political partition of their com- munity across new borders. Th irdly, the Assyrians themselves were not keen to accept any more than a temporal presence in Iraq; they were fuelled by nationalist desires to return to their homelands in the Hakkari Mountains in Turkey. Th is ‘unwillingness’ to be accommodated on the part of newcomers was seized upon as proof by Kurds and the Iraqi authorities, who portrayed the community as pre-modern and unwilling to integrate into the emerging state.

On realizing the impossibility of Assyrian self-determination, the commu- nity pushed for the establishment of millet status, recognizing their cultural and political autonomy within Iraq as under the Ottoman Empire. 159 Th e commu- nity felt this was fair exchange for relinquishing their ambitions of return to the Hakkari Mountains, and a signal that they were willing to participate in the new Iraqi state. 160 While some protection measures existed for Assyrians in the 1920s, the push to create a viable modern state meant that such collective systems of lineage-based rights would be foregone in return for individual-based citizenship on an equal basis in the new state: a decision that impacted other Christians, Chaldeans, Syrians, and Jacobites in Mosul. 161 Th us, in an appeal made to the Allies on the grounds of ‘justice’ and ‘humanitarian principles’ in 1945, Assyrians articulated their position as follows:

We may be considered a separate and distinct people (nation) which joined the allies in both wars and made great sacrifi ce losing its political Autonomous Status, its movable and immovable property, social educational religious institutions, all of its fi nancial wealth and more than half of its people either killed on the battlefi elds or massacred in cold blood. 162

Th e ‘Assyrian problem’ is identifi ed succinctly in a letter addressed to the Secretary of State of the United States by the Th ird Secretary in Baghdad in 1945. Th e let- ter outlines four specifi c problems, ‘on the basis of historical fact’ and ‘through conversations with trained observers’. 163 He highlighted a deep hatred and dis- trust between Assyrians and the Iraqi Muslim Arabs, one intensifi ed by events of 1941 as a result of which Assyrians were more unifi ed than they had been for many years. He also noted that given the ‘great services’ the Assyrians had given to the British, they felt ‘strongly that England and the United Nations should

¹⁵⁹ Th e disillusionment of the community with Britain is clearly visible in the Assyrian National Pact of 1932 , which holds the former colonial power guilty of not respecting the future of the Assyrian ‘nation’ and not guaranteeing their incorporation into Iraq as an autonomous community; see RS Staff ord, ‘Iraq and the Problem of the Assyrians’ (1934) 13(2) International Aff airs (Royal Institute of International Aff airs 1931–1939) 159. ¹⁶⁰ Lukitz (n 7) 27. ¹⁶¹ Ibid. ¹⁶² Memo entitled ‘Assyrian Problem’ Enclosure No 1 to Dispatch 698 American Legation, Baghdad

(11 April 1945) reproduced in FD Andrews (ed), Th e Lost Peoples of the Middle East (Documentary Publications 1982) 31, 36. ¹⁶³ WW Birge, Th ird Secretary of Legation, Letter addressed to the Secretary of State, Washington,

Secret No 698, American Legation, Baghdad (11 April 1945) as reproduced in Andrews (n 162) 27.

Minority Rights in Iraq216

show their gratitude . . . by eff ecting some solution to the Assyrian problem which would guarantee the safety and integrity of the Assyrian nation’. 164 Finally, he noted that, for a majority of the Iraqi Assyrian community, there was a desire to migrate to a Christian country. 165

2.10 Sabian Mandaeans

Sabian Mandaeans, 166 one of the oldest religious minorities in the world practise a form of Gnosticism. Th ey are followers of Adam, Abel, Seth, Enosh, Noah, Shem, Aram, and John the Baptist, its central prophet. 167 Community mem- bers maintain strict separation from other communities. Th ey have typically been craft persons, carpenters, boat builders, silver-and goldsmiths, and have been part of the wealthy middle class in Iraq, with a historically contentious relationship with various sites of power in Iraq.

Th e community primarily lives in the South of Iraq in the Marsh areas, 168 with a smaller presence located in Khorramshahr and Ahwaz in the South-West and in Baghdad. Under Saddam Hussein, the ‘third river project’ diverted water from the main rivers destroying the marshlands, displacing a signifi cant portion of the community, who either resettled elsewhere or fl ed Iraq. 169 Th e level of vio- lence directed against the community has risen sharply since the invasion, leading to credible fears of extinction. Although fi gures vary, there are less than 5,000 Mandaeans remaining of the approximately 50,000 in the early 1990’s. Despite their dhimmi status, 170 the press and NGOs 171 report that the community has been targeted by Sunni and Shi ‛ a militia. A 2005 report by UNHCR notes:

Th e major reasons for the ongoing fl ight of Mandaeans from Iraq are: fear from assaults by radical segments of the Muslim society, fear of forced conversions, restrictions on the

¹⁶⁴ Ibid. ¹⁶⁵ Ibid. ¹⁶⁶ Sometimes referred to as Sabians or Mandaeans. Th is group is distinct from the Sabaeans who

inhabit south Yemen or the pagan sect of ‘Sabians’ of Harran who adopted the same name Sabian in order to avoid Muslim persecution. ¹⁶⁷ Some scholars argue that the religion predates Baptism. ¹⁶⁸ In Iraq, the Mandaean community lives primarily in the Marshes or along the two rivers, at

al-Amara, Qal’at-Salih, Nasiriya, Suq al-Shuyukh, and Qurna. Mandaeans are also found in Khuzestan Province in Iran. ¹⁶⁹ Th is was done to target Shi ‛ a tribal peoples as a punitive measure. ¹⁷⁰ Sabians are mentioned in the Qu’ran (2:62) as peoples of the book but this is not without some

debate as there are some who challenge whether the Mandaean community has dhimmi status. Whatever the merits, ‘Mandaeans were hardly ever tolerated. Th us, the affl icted community retired more and more into the inaccessible marshes of southern Iraq and the river districts of Khuzestan, where Mandaeans are found until now.’ See Mandaean Human Rights Group, Mandaean Human Rights Report (November 2009) 5: <http://www.mandaeanunion.org/HMRG/Final_MHRG_ Report_2009.pdf> accessed 29 November 2011. ¹⁷¹ See A Crawford, ‘Iraq’s Mandaeans face extinction’ BBC News (4 March 2007): <http://news.

bbc.co.uk/2/hi/6412453.stm> accessed 29 November 2011. See also various reports by Minority Rights Group International available at: <http://www.minorityrights.org> and, in particular, report by Taneja (n 104).

http://www.mandaeanunion.org/HMRG/Final_MHRG_Report_2009.pdf

http://news.bbc.co.uk/2/hi/6412453.stm

http://www.minorityrights.org

2 Identifi cation of Minorities 217

freedom of worship, concerns regarding security (in particular of women and children) as well as increasing social discrimination against Mandaeans in general. Th ese fears are further fuelled by several religious edicts ( fatwas ) issued against the Mandaean commu- nity, characterising them as ‘impure’ and denouncing their beliefs. A recently issued fatwa accuses Mandaeans of systematic adultery and trickery and Muslims were called upon to ‘lead’ them to Islam. Th e majority of these fatwas was issued by Sunni teacher Al-Saied Al-Tabtabee Al-Hakeem and/or by the ‘Information Foundation of Al-Sadr Offi ce’ in Basra. 172

As Mandaeans are pacifi sts, their religious tenets prohibit carrying weapons or using violence. Th is belief, ‘together with the violence being infl icted on the com- munity and one of the tenets of the faith that says marrying out is akin to reli- gious conversion, makes the likelihood of Mandaean eradication from Iraq very real’. 173 Th e UNESCO Atlas of the World’s Languages in Danger of Disappearing (2006) warns of the potential extinguishment of the Mandaean language, which survives only in liturgy.

2.11 Baha’is

As a post-Islamic religion Bahai’ism is considered by some Muslims to be heretical and its followers to be apostates. Th e number of Baha’i living in Iraq is reported to be 2,000. While their current security situation is acute, their relationship with governing authorities in Iraq has historically been diffi cult. Law No 105 of 1970, 174 still in force, made it an off ence to practise the Baha’i faith. A 1975 Regulation (358) 175 prohibited the issuance of a nationality identity card to those claiming to be of the faith. Under this regulation, Baha’is were forced to be identi- fi ed as Muslims. Th ose born during or after this period, who were not registered, are left without identity cards or travel documents including passports, making it impossible for Baha’is to travel outside the country or register their children in school. In April 2007, the Iraqi Ministry of Interior’s Nationality and Passport Section cancelled this regulation, yet, according to a report by the United States Commission on International Religious Freedom (USCIRF), ‘Iraqi identity cards continue to explicitly note the holder’s religion and Baha’is, whose identity cards were changed to read “Muslim” after Regulation 358 was instituted, as well as Muslims who convert to Christianity, continue to be unable to change their cards to refl ect their Baha’i or Christian faith.’ 176

¹⁷² UN High Commissioner for Refugees, Background Information on the Situation of Non-Muslim Religious Minorities in Iraq (1 October 2005) 4. ¹⁷³ Taneja (n 104) 11. ¹⁷⁴ UN High Commissioner for Refugees, Eligibility Guidelines for Assessing the International

Protection Needs of Iraqi Asylum-Seekers (May 2012) 30. ¹⁷⁵ UN High Commissioner for Refugees (n 121) 178. ¹⁷⁶ United States Commission on International Religious Freedom, Iraq Report (2008) 22.

Minority Rights in Iraq218

2.12 Black Iraqis

Th e Black Iraqi community traces its origins to East Africa, with the earliest movements of population to Iraq occurring just after the birth of Islam. More contemporaneously, Black Iraqis have come to Iraq through traffi cking or slave trade, with a larger wave of immigrants coming in the 1980s, many of whom were subsequently recruited in to the Army. Black Iraqis are not featured in minority reporting on Iraq often, yet, they comprise a signifi cant population numbering up to 2 million. 177 According to UN reporting and community representatives they experience discrimination, are often referred to as ‘ abd ’, or slaves, and face political and economic exclusion. Th e largest community of Black Iraqis lives in Basra, with smaller communities just outside Baghdad, in Sadr City. Black Iraqis work predominately as labourers or domestic workers. United Nations Assistance Mission for Iraq (UNAMI) reports that 600 Black Iraqi families live in poverty and there is an 80 per cent unemployment rate and illiteracy rate amongst the community. 178

2.13 Circassians

Th e term ‘Circassian’ references communities of Adygei-speaking tribes (Shapsugh, Abzekh, Ubikh, Kabardian, Besleney, Bjadugh, and Hotquay tribes, etc.) originating in North Caucasia. Circassians were deported from their homeland after the Russian conquest of Circassia in 1864. As non-Arab Sunnis, they, along- side other Muslims, have faced oppression and persecution and, consequently, there was a southward emigration of Caucasian Muslim tribes encouraged by the Ottoman Sultan, Abdel Hamid. Th ey were welcomed into the Ottoman Empire for practical reasons 179 and settled in Turkey, Syria, Palestine, with a small number in Iraq, and the rest in the Trans-Jordan. 180 Th e Circassians in Iraq number no more than 2,000, and, while there are a few references to Circassians in recent reports, there are no confi rmed details as to their current status or situation in Iraq. 181

¹⁷⁷ M Lalani, ‘Still Targeted: Continued Prosecutions of Iraq’s Minorities’ (Minority Rights Group International 2010) 23. ¹⁷⁸ Ibid 27. ¹⁷⁹ Even amongst the broader academic literature, there are only a few specifi c pieces of note on

Circassians. See A Kaya, ‘Cultural Reifi cation in Circassian Diaspora: Stereotypes, Prejudices and Ethnic Relations’ (2005) 31(1) Journal of Ethnic and Migration Studies 129–49. ¹⁸⁰ HR Abd-el-Jawad, ‘Why Do Minority Languages Persist? Th e Case of Circassian in Jordan’

(2006) 9(1) International Journal of Bilingual Education and Bilingualism 51, 54. ¹⁸¹ Minority Rights Group International references their presence in two recent reports, but no

other details are reported. See Lalani (n 177) 6, and C Chapman and P Taneja, Uncertain Refuge, Dangerous Return: Iraq’s Uprooted Minorities (Minority Rights Group International 2009) 6, 23.

2 Identifi cation of Minorities 219

2.14 Jews

Th e tie of the Jewish community to the region at large, and to Iraq in particu- lar, can be traced back over 2,500 years. During the Ottoman period, especially following the Tanzimat reforms, Jews in Iraq were prominent in both civil and political life 182 and, as Bashkin argues, from the mid-1800s until the early 1900s, Iraqi Jews ‘wished to integrate in to both the Ottoman state and Iraqi society’. 183 For Iraqi Jews ‘the Sunni-Ottoman state was the power that could ensure their citizenship rights, and the agency through which they could improve their social status. Moreover, this positive and anti-sectarian approach to the state remained fi rm in the Hashemite period’. 184

Set against the rise of Arab nationalism, the creation of Israel in 1948 that led to persecution, 185 and their subsequent expulsion (‘voluntary’ departure) from the region, Davis’ observation that sectarianism can be ‘activated’ 186 has weight. However, we endeavour to analytically frame the underpinnings of the ethno-confessional violence that led to the exodus of Jews from Iraq. Th e fi gures are stark—at one time the Iraqi Jewish population was estimated at 150,000 whereas today there are no confi rmed reports that a Jewish population exists. A 2009 report by UNHCR stated that the situation for Jews in Iraq after the fall of the regime in 2003 worsened dramatically. It states, ‘[g]iven the ongo- ing climate of religious intolerance and extremism . . . Jews in Iraq continue to be at risk of harassment, discrimination, and persecution for mainly religious reasons’. 187 Th ere are some reports that suggest a Jewish community of about 10–20 Jews remain but there is no Rabbi and whatever community may be left is living in isolation most likely in or around Baghdad or in the Kurdish-controlled region. 188

2.15 Palestinians

Th e Palestinian case is a stark example of the sectarian divide-and-rule policy of Saddam Hussein. Most Palestinians arrived in Iraq as refugees in three waves: from Palestine in 1948, after the 1967 Arab–Israeli war, and in 1991, after the fi rst Gulf War from Kuwait. Th ey settled in and around Baghdad and Mosul.

¹⁸² Jews were traditionally involved in trade, as tailors, goldsmiths, and farmers. ¹⁸³ O Bashkin, ‘Religious Hatred Shall Disappear from the Land—Iraqi Jews as Ottoman Subjects,

1864–1913’ (2010) 4(3) International Journal of Contemporary Iraqi Studies 305, 305. ¹⁸⁴ Ibid 306. ¹⁸⁵ ‘Zionism’ was declared a criminal, and sometimes capital, off ence in Iraq, with only two Muslims

required to denounce one Jew. ¹⁸⁶ E Davis, ‘Th e Question of Sectarian Identities in Iraq’ (2010) 4(3) International Journal of

Contemporary Iraqi Studies 229, 239. ¹⁸⁷ UN High Commissioner for Refugees (n 121) 178–9. ¹⁸⁸ See, for example, S Farrell, ‘Baghdad Jews have become a fearful few’ New York Times (1 June

2008).

Minority Rights in Iraq220

Th eir identity as Palestinians and the fact that most were Sunni were factors seen as useful by Ba ‛ thists. Palestinians were placed in visible political positions and were able to travel more freely that many Iraqis. While Saddam Hussein did not grant Palestinians citizenship, they were exempt from military service and granted economic subsidies and housing and other benefi ts. It is against this backdrop that post 2003, Palestinians were seen to have been preferentially treated and were subjected to harassment and violent attacks, including by Iraqi offi cials from the Ministry of the Interior (Mol). A 2006 Human Rights Watch (HWR) report noted:

Th e security of the approximately 34,000 Palestinian refugees in Iraq has drastically deteri- orated since the fall of the Saddam Hussein government in April 2003. Militant groups, mostly Shi ‛ a, have targeted this predominantly Sunni minority community, attacking their communal buildings, committing several dozen murders, and threatening harm unless they immediately leave Iraq. Amidst the widespread politically motivated and criminal violence in Iraq, Palestinians have been targeted more than other minorities because of resentment of the privileges Palestinians received during Saddam Hussein’s rule, and suspi- cions that they are supporting the insurgency. 189

Th e violence directed at Palestinians has forced a signifi cant number to leave: esti- mates suggest that only between 10,000 and 15,000 remain. HRW also reported that for those who remain, the Ministry of the Interior imposed ‘new and extremely burdensome registration requirements . . . providing a venue for bureau- cratic hostility’. 190 Th ese requirements force Palestinians to renew short-term resi- dency permits, leaving them vulnerable to bureaucratic harassment.

2.16 Roma

Th e Roma community, colloquially known as Kawliyah , originated in India and have lived in Iraq for hundreds of years. Th eir current population, estimated at 60,000, comprises both Sunni and Shi ‛ a Muslims. Th ey live primarily in and around Baghdad as well as in the southern Iraqi governorate of Qadissiyah. Under the Ba‛thist regime, Roma were not allowed to own property and could not occupy prominent government or military positions. Under Saddam Hussein they were aff orded some protection in exchange for their services: supplying alco- hol, prostitution, or as performers. Some Roma men were professional singers and musicians while Roma women were often dancers, activities that have made them a target of ‘Islamic’ militants. 191 As the 2010 MRG report notes:

¹⁸⁹ Human Rights Watch, Nowhere to Flee: Th e Perilous Situation of Palestinians in Iraq (10 September 2006) E1804. ¹⁹⁰ Ibid. ¹⁹¹ See United Kingdom: Home Offi ce, Country of Origin Information Report—Iraq (25 March

2011) 171.

3 Rights of Minorities 221

After 2004, Kawliyah were targeted by the Mahdi Army, a Shi ‛ a militia loyal to the radical cleric Moqtada al-Sadr, which regarded them as morally repugnant. Despite being Muslims, Kawliyah have been ostracized by Iraqi society and authorities alike because of their diff er- ing cultural and social norms and their tradition as entertainers. Consequently, they experi- ence substantial diffi culties in accessing health, housing and education services. 192

Th e plight of minority communities is often situated within a narrative on the resurgence of Islam in the Middle East, ‘characterized by violence towards non-Muslims, intolerance, and support for religiously based authoritarian rule’. 193 Yet it is imperative that the political contexts for persecution are understood, rather than simply attributing violence to ‘Islamic’ groups. 194

3 Rights of Minorities

Th e complexities of the relationship between religion and political community remain key as we turn to the Constitution building and state-crafting process in Iraq. Seeking a framework to analyse the rights of minorities in Iraq today raises key questions as to the extent to which legal measures currently ascribed within the Iraqi legal system have (a) legitimacy beyond the occupation; and (b) present durable models through which the future of Iraq could be sustained. Th e legitimacy and durability questions are intrinsically linked, and, while it may be too early for the analysis in this section, it is nonetheless important to fi nd ways to measure and critique what could be interminably moving targets in terms of the continued existence of minorities within Iraq. Applying a number of models used for the analysis of other states, this section examines the rights of minorities through the prism of the Iraqi Constitution, while identifying particular themes on which additional protection is either sought or framed. Th us, the fi rst sub- section examines the legitimacy of the framing of the Constitution from the perspective of minorities, while the second focuses on its key content vis- à -vis minorities.

3.1 Framing the Constitution of Iraq

Th e Iraqi Constitution was drafted during the occupation with the choice of individuals participating in its drafting impacting the content. Th is is hardly unique: the constitutions of Germany and Japan, at the end of World War II, and of Afghanistan, in a contemporary context, have all been enshrined against the backdrop of American occupation. 195 Yet, for Iraq and Afghanistan, with

¹⁹² Lalani (n 177) 7. ¹⁹³ Davis (n 98) 13. ¹⁹⁴ Ibid. ¹⁹⁵ LC Backer, ‘God(s) over Constitutions: International and Religious Transnational

Constitutionalism in the 21st Century’ (2007–2008) 27 Mississippi College Law Review 11, 45.

Minority Rights in Iraq222

their majority Muslim faith-based populations, questions over the legitimacy of the occupations provide diff erent kinds of challenges. 196 Th is distinction consti- tutes ‘a national refl ection of an ancient universal system of governance devel- oped within a global community of believers, whose moral and ethical norms, it is argued, should limit the power of states over their subjects, whether or not members of the community of believers’. 197

Th e processes attendant to the adoption of the Iraqi Constitution merit review, especially with respect to the emphasis placed on religion. One advisor to the Coalition Provisional Authority in Baghdad, charged with the task of generating the Constitution, Noah Feldman, was a clear proponent of the notion of religion within public life. 198

Th e Constitution was adopted on the 15th October 2005, replacing the Law for the Administration of the State. Th e document was viewed by drafters as ‘permanent’ though concluded after a complicated and ultimately unsuccessful three-way dialogue between the three largest ethno-religious blocks of popula- tion in Iraq: the Sunni, Shi ‛ a, and Kurds. Th e narrative projected was that the Constitution signalled a compromise arrived at through political negotiation between representatives of the three groups; in reality, it was drafted by political elites, largely exiled fi gures parachuted in by occupation forces, who have since developed narrow sectarian constituencies in pursuit of parochial interests. 199 Th e document, approved by popular vote was celebrated by the Western press as the legitimate voice of post-Saddam Iraq, yet questions still surround its legitimacy and durability. 200

Th e range of issues at stake in the development of the Constitution was articu- lated in a briefi ng paper in August 2005. 201 Th is report listed the following as key issues to be resolved:

(1) the role of Islam in the Constitution and the new State; (2) the position of the Sunnis; (3) the Kurdish question predominantly the status of Iraqi Kurdistan, the posi-

tion of the peshmerga , and the dispute over Kirkuk; (4) the question of State structure viz Unitary versus Federal; (5) the question of oil revenue sharing; (6) women’s rights viz concern over the impact of Islamicization. 202

¹⁹⁶ Ibid 14. ¹⁹⁷ Ibid. ¹⁹⁸ Ibid 45. ¹⁹⁹ For a comprehensive discussion on the drafting process, see A Arato, Constitution Making Under

Occupation: Th e Politics of Imposed Revolution in Iraq (Columbia Studies in Political Th ought/Political History) (Columbia University Press 2009). ²⁰⁰ For an excellent critique of the drafting process, see AE Mayer, ‘Fatal Flaws for the US

Constitution Project for Iraq’ (2007) 61(1) Journal of International Aff airs 153. ²⁰¹ See contributions by N Atalla, G Careccia, and A Ramadan, CAABU Briefi ng: Th e New

Constitution of Iraq (Council for the Advancement of Arab–British Understanding (CAABU) no. 84 August 2005). ²⁰² Ibid.

3 Rights of Minorities 223

Th e Transitional Administrative Law members, 25 Iraqis appointed by the United States to draft the provisional constitution, were entrusted with the task of turn- ing this agenda into a workable constitution. 203 Feldman views the Constitution as an exemplar of how a Muslim majority state could frame a constitution with adequate emphasis on human rights. 204 However, the range of outstanding issues is captured by Mattar:

While the new Iraqi Constitution is to be considered a step forward, it leaves, perhaps intentionally, many questions unresolved, especially in defi ning the limits that Islamic Law may impose on the exercise of the various human rights enumerated in the Constitution. Th e answers to many of these questions depended on the legislative process that will com- mence when the Constitution was approved by the people of Iraq. It will also depend upon the judicial interpretation of its various provisions, especially those that establish constitu- tional rights for the Iraqi people. Finally, it will depend upon the degree to which ordinary Iraqis are educated about these rights and if civil society holds the government accountable to upholding these rights. In all cases, the Iraqi people should be fully aware of their consti- tutional rights. Non-governmental organizations and other members of civil society have the vital duty of engaging in this educational initiative. 205

American infl uence in the drafting process is clear, as is the fact that the political community selected by Anglo–American authorities was drawn from Iraqi expatri- ates with little or no constituency base in Iraq. While the optics were carefully orchestrated to suggest that Iraqi civil society was at the heart of these changes, observers acknowledged and argued the necessity of American interference in these processes. When referring to the drafting process, one commentator argued that US involvement pushed for a ‘constitutional framework, [where] religion is no longer an object with which a political community must deal. Instead, religion serves as the foundation on which political communities are constituted.’ 206

²⁰³ For sources that discuss the process and the outcome of the drafting of the Iraqi constitution, see J Finer and O Fekeiki, ‘Iraqis fi nish draft Charter that Sunnis vow to defeat’ Th e Washington Post (29 August 2005); SC Welsh, Iraq Constitutional Referendum, Center For Defense Information (17 October 2005): <http://www.cdi.org/news/law/iraq-referendum-101705.cfm> accessed 29 November 2011; K Semple and RF Worth, ‘Early signs show Iraqis’ approval of constitution’ New York Times (17 October 2005); H Docena, ‘Iraq’s Neo Liberal Constitution’ Foreign Policy In Focus (2 September 2005): <http://www.fpif.org/reports/iraqs_neoliberal_constitution> accessed 3 February 2013, and ‘Iraqis Agree on New Constitution’ BBC News Online (8 March 2004): <http:// news.bbc.co.uk/2/hi/middle_east/3541875.stm> accessed 29 November 2011 (BBC’s Middle East analyst, Roger Hardy, says the interim constitution is remarkably progressive by the standards of the Middle East, seeking to strike a balance between respect for Islam and regard for liberal demo- cratic rights). For a more academic treatment of the subject matter, see AS Deeks and MD Burton, ‘Iraq’s Constitution: A Drafting History’ (2007) 40 Cornell International Law Journal 1 (the authors were Legal Adviser and Deputy Legal Adviser, respectively, at the US Embassy in Baghdad during Iraq’s constitution drafting process). Th e politics of the process of constitutional development are summarized in N Feldman and R Martinez, ‘Constitutional Politics and Text in the New Iraq: An Experiment in Islamic Democracy’ (2006) 75 Fordham Law Review 883, 886–901. ²⁰⁴ N Feldman, ‘Imposed Constitutionalism’ (2005) 37 Connecticut Law Review 857, 857–8. ²⁰⁵ MY Mattar, ‘Unresolved Questions on the Bill of Rights of the New Iraqi Constitution: How

Will the Clash Between “Human Rights” and “Islamic Law” Be Reconciled in Future Legislative Enactments and Judicial Interpretations?’ (2006) 30 Fordham International Law Journal 126, 157. ²⁰⁶ Backer (n 195) 61.

http://www.cdi.org/news/law/iraq-referendum-101705.cfm

http://www.fpif.org/reports/iraqs_neoliberal_constitution

http://news.bbc.co.uk/2/hi/middle_east/3541875.stm

Minority Rights in Iraq224

Notwithstanding issues raised by ‘transformative’ measures implemented by the occupying powers, there are some arrogant assumptions implicit in this anal- ysis that we argue are fl awed, not least of which is the perceived tension between faith and democracy. It is also worth noting that, despite the US and other ‘Western powers’ involvement in the process, the new constitution was drafted with limited political participation of smaller minority communities. 207 Th us, while signifi cant emphasis was placed on gaining the consent and agreement of the Sunni and Kurds (ostensibly minorities) and the majority Shi ‛ a population, smaller groups such as those identifi ed above, were largely ignored. When audit- ing the Constitution, we concur with Taneja that:

It lacks protection measures for basic norms and freedoms, and has alarmingly vague or confl icting articles on civil society, autonomy, minority and women’s rights, political freedoms, and the role of religion . . . Th e main casualty of the fl awed Constitution draft- ing process—which was characterised by haste; pressure from external actors; and the under-representation of Sunni Arabs, women and minority representatives—was the legit- imacy of the text itself . . . 208

Th e Constitution drafting committee eventually consisted of 71 individuals, of whom fi ve were drawn from minority communities and only one individual was a woman.

3.2 Th e Constitution and the ‘rights’ of minorities

Th e Preamble to the Constitution celebrates religious diversity in a bid to bridge Iraq’s myriad identities. It refers to the past ‘invoking the pains of sectarian oppres- sion infl icted by the autocratic clique’ and suggests that the Constitution is:

. . . inspired by the tragedies of Iraq’s martyrs, Shiite and Sunni, Arabs and Kurds and Turkmen and from all other components of the people, and recollecting the darkness of the ravage of the holy cities and the South in the Sha’abaniyya uprising and burnt by the fl ames of grief of the mass graves, the marshes, Al-Dujail and others and articulating the suff erings of racial oppression in the massacres of Halabcha, Barzan, Anfal and the Fayli Kurds and inspired by the ordeals of the Turkmen in Bashir and the suff erings of the people of the western region, as is the case in the remaining areas of Iraq where the people suff ered from the liquidation of their leaders, symbols, and Sheiks and from the displacement of their skilled individuals and from drying out of its cultural and intellectual wells . . . 209

In articulating a vision that could emerge from this suff ering, the preamble goes on: ‘we sought hand in hand and shoulder to shoulder to create our new Iraq, the Iraq of the future, free from sectarianism, racism, complex of regional attach- ment, discrimination, and exclusion’. 210

²⁰⁷ Taneja (n 104) 3. ²⁰⁸ Ibid 26. ²⁰⁹ Preamble, Constitution of Iraq (2005). ²¹⁰ Ibid.

3 Rights of Minorities 225

Th e important issue of resources is touched on by the phrase, ‘following the path of peaceful transfer of power, adopting the course of just distribution of resources, and providing equal opportunity for all’. 211 Th e vision articulates the kind of state Iraq aspires to be:

We, the people of Iraq, who have just risen from our stumble, and who are looking with confi dence to the future through a republican, federal, democratic, pluralistic system, have resolved with the determination of our men, women, elderly, and youth to respect the rule of law, to establish justice and equality, to cast aside the politics of aggression, to pay attention to women and their rights, the elderly and their concerns, and children and their aff airs, to spread the culture of diversity, and to defuse terrorism. 212

Th e use of ‘republican’, ‘federal’, ‘democratic’, and ‘pluralistic’ each has conse- quences for the minority debate in Iraq. From the sub-text of religion that runs through the Constitution, the use of ‘republican’ here is a non-monarchical state- ment, which is signifi cant owing to the numerous religious personages to which communities pay homage. Unlike in Iran, also a Republic, the diffi culty of select- ing one particular religious allegiance would plunge Iraq back into the ‘stum- ble’ from which it has emerged. Th e words ‘federal’ and ‘pluralistic’ are perhaps most signifi cant for minorities. Constituting Iraq as a federal state has internal and external ramifi cations. Internally, it signals to strong minorities, such as the Kurds, that secession is not an option, while, externally, it seeks to guarantee the legitimacy to Iraq’s national frontiers. Th e Badinter Opinions, 213 expressed in the context of the dissolution of Yugoslavia, 214 diff erentiated the manner in which federal and non-federal states may dissolve, outlining principles that could be made applicable to any potential dissolution of modern Iraq. 215 Th e signifi cance of dissolution cannot be underestimated due to the strong advocacy for Kurdish self-determination. 216 Against the tide of this opinion, the Constitution clearly

²¹¹ Ibid. ²¹² Ibid. ²¹³ For an exhaustive review of the work of the Badinter Commission, see S Terrett, Th e Dissolution

of Yugoslavia and the Badinter Arbitration Commission (Ashgate 2000); also see M Weller, ‘Th e International Response to the Dissolution of the Federal Republic of Socialist Yugoslavia’ (1992) 86(3) American Journal of International Law 569. ²¹⁴ See P Radan, ‘Post-Succession International Orders: A Critical Analysis of the Workings of the

Badinter Commission’ (2000) 24 Melbourne University Law Review 50. ²¹⁵ See J Castellino and S Allen, Title to Territory in International Law: An Intertemporal Analysis

(Ashgate 2005). ²¹⁶ See especially, A Dawoody, ‘Th e Kurdish Quest for Autonomy and Iraq’s Statehood’ (2006) 41

Journal of Asian & African Studies 483; O Bengio, ‘Autonomy in Kurdistan in Historical Perspective’, in B O’ Leary and K Salih (eds), Th e Future of Kurdistan in Iraq (University of Pennsylvania Press 2005); J McGarry and B O’ Leary, ‘Iraq’s Constitution of 2005: Liberal Consociation as Political Prescription’ (2007) 5(4) International Journal of Constitutional Law , Special Issue, ‘Constitutionalism in Divided Societies’ (Sujit Choudhry, guest editor) 670, 670–98 and ‘Iraq’s Constitution of 2005: Liberal Consociation as Political Prescription’ in S Choudhry (ed), Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press 2008) 342–68; B O’Leary, ‘Iraq’s Future 101. Th e Failings of the Baker-Hamilton Report’ (2007) VI(2) Strategic Insights : <http:// calhoun.nps.edu/public/handle/10945/11346> accessed 3 February 2013 and ‘On the Baker-Hamilton Report’ (2007) 8 Democratiya (on fi le with author).

http://calhoun.nps.edu/public/handle/10945/11346

Minority Rights in Iraq226

envisions a pluralistic federal state. Th e reference to ‘pluralistic’ indicates the autonomy content in the Constitution. It is clear that a federal state with a uni- fi ed or centralized ethos would not address the many and confl icting aspirations of Iraq’s key ethnic groups. Th us, plurality is a compromise though such plural- ity could undermine the state. Th e decision to constitute Iraq as a democracy is perhaps less signifi cant: the manner in which the latest crisis unfolded and criti- cism of Saddam Hussein’s regime made ‘democracy’ the only real option for Iraq. Th e challenge lies in the extent to which the rhetoric of democracy can spawn a sophisticated system of governance derived from the consent of the majority, while upholding values inherent to the system. Th e attempt made post-invasion by the Occupying Powers to transfer democracy is unconvincing, despite lim- ited attempts at building institutions. 217 Th e historical precedent for ‘building democracies’ is not reassuring: 218 similar rhetoric was used but rarely realized during decolonization.

Section 1 of the Constitution, ‘Fundamental Principles’, consists of 13 articles, many of which are signifi cant to minorities. Article 1 reiterates that Iraq is consti- tuted as a republican, representative parliamentary democracy. Th e other articles with direct bearing to this book are: Articles 2, 3, 4, 7, 8, 10, and 13.

Article 2 identifi es Islam as the offi cial religion of the state and the ‘source of legislation’. It introduces three caveats—that laws should not be passed that are contrary to (i) Islam; (ii) democracy; and (iii) basic rights and freedoms con- tained in the Constitution. 219 Th is sub-article raises issues of great richness in the context of the cultural relativism debate especially concerning Islam and human rights. 220 Th e strong statement of identity in a traditionally pluralistic country is

²¹⁷ See, Mayer (n 200) 153. ²¹⁸ Th ere are signifi cant literatures that examine theories of democratization. Transitologists

(as they are sometimes called) adopt a number of diff erent approaches to their studies. Th ere are those who are structuralist and focus on the structure of a system or organization rather than the behaviour of its members. For examples of the structural perspective, see SM Lipset, ‘Some Social Requisites of Democracy: Economic Development and Political Legitimacy’ (1959) 53 American Political Science Review 69; B Moore, Social Origins of Dictatorship and Democracy: Lord and Peasant in the Making of the Modern World (Beacon 1966). Others focus on political elites, see GA O’Donnell and P Schmitter, Transitions from Authoritarian Rule (Johns Hopkins University Press 1986), which was one of the earlier works that shifted democratization studies from the structural to the actor level. Th ere are also a smaller number who apply a structuralist-Marxist account of transitions to democracy, see D Rueschemeyer, EH Stephens, and JD Stephens’ study on democratic transitions in Latin American and Western Europe in Capitalist Development and Democracy (University of Chicago Press 1992). Still others provide an institutional analysis of transitions to democracy, see S Haggard and RR Kaufman’s study of Latin America and Asia, in Th e Political Economy of Democratic Transitions (Princeton University Press 1995). Finally, there are some scholars that focus on regime types to explain democratic transitions, see JJ Linz and AC Stepan’s look at transitions to democracy in Latin America, Southern Europe, and Eastern Europe in Problems of Democratic Transition and Consolidation (Johns Hopkins University Press 1996). ²¹⁹ Article 2(First), Constitution of Iraq (2005). ²²⁰ We briefl y cover some of this terrain in Chapter 1 but for a more in-depth discussion, see,

AM Emon, M Ellis, and B Glahn, Islamic Law and International Human Rights Law (Oxford University Press 2012).

3 Rights of Minorities 227

mitigated slightly by the second part of Article 2, which reads: ‘Th is Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights to freedom of religious belief and practice of all individu- als such as Christians, Yazidis, and Mandaean Sabeans.’ 221

While this sub-paragraph upholds the rights of religious worship of all Iraqis a number of concerns remain. 222 First, the contested value of ‘guaranteeing the Islamic identity of the majority’, a wording that suggests that while religious identity and practice is protected for some groups, non-religious sentiments and religious practices of other religious minorities not identifi ed do not merit protection. 223 Th us, rather than a general article on the right to hold beliefs, to profess and engage in their practice, the fi rst part of the article is restricted to Islam, while the second is focussed on Christians, followed by two ethnic groups: the Yezidis and the Sabian Mandaeans. Th is excludes Jews, Bahai, the Druze, and non-believers. Th us, despite Article 3 refl ecting Iraq as a ‘country of multiple nationalities, religions, and sects’, Article 2 (Second) still lists the religious protec- tions. Th e issue of religious rights and Iraq’s relatively unique custom of religious personages is upheld in Article 10 guaranteeing the sanctity and practice of ritu- als within Iraq’s holy shrines. 224 Article 2 also refl ects the result of the debate on the role of Islam within the new state: ‘No law may be enacted that contradicts the established provisions of Islam; No law may be enacted that contradicts the principles of democracy; No law may be enacted that contradicts the rights and basic freedoms stipulated in this Constitution.’ 225

Th is signals a choice made by drafters in electing religious rather than plural- istic secular bases for the ethos of the new state. Several commentators, mostly in the West, argued for a secular base; however, it became increasingly clear in the unfolding debates that religion was likely to play a key role, and that, with- out express recognition of this role, the Constitution would likely be less legit- imate and durable. 226 To ensure that the reference to Islam is not superfi cial, the Constitution enshrines the Supreme Court as guardian of the Constitution, ensuring the eff ectiveness of this by composing it both of experts in Islamic juris- prudence and of legal scholars. 227

²²¹ Article 2(Second), Constitution of Iraq (2005). ²²² See S Hanish, ‘Th e Role of Islam in the Making of the New Iraqi Constitution’ (2007) 16 Domes ;

also see R Spencer, ‘No to Islamic Law in Iraq’ (2006) 62 Human Events (13 November 2006). ²²³ Apostasy is a complicated issue and has been raised in the context of many other countries,

particularly those that are Muslim. See J Temperman, State–Religion Relationships and Human Rights Law (Martinus Nijhoff 2010) 183–6. ²²⁴ Article 10, Constitution of Iraq (2005). ²²⁵ Ibid Article 2. ²²⁶ As Reza Aslam would argue, the idea of an Islamic democracy may be viewed by some as an

oxymoron, yet the inclusion of Islam into the Iraqi constitution is better read as a basis for religious pluralism, which has a distinctly ‘Islamic moral framework’. See R Aslan, ‘Th e Iraqi Constitution: A Model of Islamic Democracy’ (2006–2007) 7(3) Insights in Law & Society 2, 12–13. Also see Mayer (n 200). ²²⁷ See Article 92, Constitution of Iraq (2005). Also see, Temperman (n 223) 83–6.

Minority Rights in Iraq228

Guaranteeing the freedom of religion of Christian communities consists of a set of positive as well as negative obligations. Th e provision concerning the religious nature of the state should be read in conjunction with the provisions of Article 41: ‘Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs or choices, and this shall be regulated by law.’ 228

Article 4 addresses controversial questions over linguistic rights by designating two offi cial languages—Arabic and Kurdish 229 —while upholding the right of cit- izens/Iraqis to educate their children in their arterial language, listed as including Turkoman, Syriac, and Armenian. Th is right is extended to public institutions with guidelines used in private educational institutions to uphold this right. 230 Once again, the question is raised as to why, in celebrating and reiterating Iraqi culture as plural, particular communities and languages are identifi ed. Th e deci- sion to adopt two national or offi cial languages is the result of a compromise between the three major ethno-religious identities. It is hard to imagine the value of specifi cation in making allowances for educational institutions to facilitate teaching in other languages. Linguistic policies are generally driven by practicality and usage: it is unlikely that a state would be able to aff ord to provide education in seldom-used languages. To celebrate the right to education in arterial lan- guages of minorities, while only selecting three, risks exclusion. In areas domi- nated by Kurds, 231 Turkomen, and Syriac, 232 provisions are made for greater linguistic engagement. In an attempt to guarantee a degree of linguistic fl exibility in a country of Iraq’s diversity, Article 4 (Fifth) does make provision for the will of majority populations living in particular regions or governorates, thus: ‘Each region or governorate may adopt any other local language as an additional offi cial language if the majority of its population so decides in a general referendum.’ 233

Article 7 concerns hate speech and its attendant actions, often motivated by religious or racial superiority, that raise ethno-religious tensions within a state. Th is addresses an issue of fundamental importance to minorities, enshrined in Article 4 of International Convention on the Elimination of Racial Discrimination (CERD). 234 Article 7 outlaws activities of this kind, including support for the symbols of Ba ‛ thism in its remit:

Any entity or program that adopts, incites, facilitates, glorifi es, promotes, or justifi es racism or terrorism or accusations of being an infi del (takfi r) or ethnic cleansing, especially

²²⁸ Article 41, Constitution of Iraq (2005). ²²⁹ Th e trappings of offi cial language are identifi ed in Article 4(Second) as consisting of: offi cial

gazetted publication in two languages, guarantees of usage in offi cial domains, usage in primary doc- uments and communications, use in schools, and on offi cial governmental documents including on banknotes, passports and stamps. ²³⁰ Article 4(First), Constitution of Iraq (2005). ²³¹ Ibid Article 4(Th ird) facilitates this while ensuring Arabic is equally used. ²³² Ibid Article 4(Fourth). ²³³ Ibid Article 4(Fifth). ²³⁴ See Article 4, International Convention on the Elimination of All Forms of Racial Discrimination

entered into force 4 January 1969.

3 Rights of Minorities 229

the Saddamist Ba‛th in Iraq and its symbols, under any name whatsoever, shall be prohib- ited. Such entities may not be part of political pluralism in Iraq. Th is shall be regulated by law. 235

Article 9 tackles security concerns through provisions concerning armed forces, building on earlier references to the battle against terrorism, 236 and outlawing private militias. 237 Article 9 (First, A) does seek to guarantee adequate ethnic representation, stating:

Th e Iraqi armed forces and security services will be composed of the components of the Iraqi people with due consideration given to their balance and representation without dis- crimination or exclusion. Th ey shall be subject to the control of the civilian authority, shall defend Iraq, shall not be used as an instrument to oppress the Iraqi people, shall not inter- fere in the political aff airs, and shall have no role in the transfer of authority. 238

Th is historically poignant article welcomes the need to create a fully representa- tive army. If successful this would herald signifi cant change in the ethos of the military, which has always been dominated by powerful groups. Th e poignancy lies in the troubled relationship between the armed forces and minorities. Th e ‘massacres’ mentioned in the preamble have been perpetrated by those with offi - cial responsibility to safeguard the state and its citizens. Th e other sub-articles of Article 9 make determined statements against the manner in which the armed forces were used in the past, de-linking service in the army from seeking political offi ce, 239 creating accountability over use of information between the National Intelligence Units and the Army, 240 and guaranteeing non-proliferation of nuclear weapons. 241

Article 13 includes a caveat ensuring that the Constitution is pre-eminent in Iraq, protecting it from being overwritten by other texts from the regions or elsewhere. 242 Like every constitution, protection to minorities is off ered through a standard non-discrimination clause contained in Article 14: ‘Iraqis are equal before the law without discrimination based on gender, race, ethnicity, nationality, origin, colour, religion, sect, belief or opinion, or economic or social status.’ 243

Th e wide number of grounds refl ects the historical diversity within Iraq and the region. Th e expression ‘belief or opinion’ covers communities such as the Druze community, often misclassifi ed in terms of their religious affi liation. Unlike Iran, Iraq has taken a wider lens in identifying factors for the diff eren- tiation of its population. Iran takes a narrower focus with the Baha’i constantly

²³⁵ Article 7(First), Constitution of Iraq (2005). ²³⁶ Ibid Article 7(Second). ²³⁷ Ibid Article 9(First, B). ²³⁸ Ibid Article 9(First, A). ²³⁹ Ibid Article 9(First, C). ²⁴⁰ Ibid Article 9(First, D). ²⁴¹ Ibid Article 9(First, E). ²⁴² Ibid Article 13. ²⁴³ Ibid Article 14.

Minority Rights in Iraq230

battling for recognition. While the grounds identifi ed are wide, the failure to include linguistic communities is conspicuous, since these communities were the only ones identifi ed in the few reports that Saddam Hussein’s Iraq submitted to CERD. Th ose reports suggested that the only Iraqi minorities that existed were Syriac and Kurdish-speaking communities. 244 Th is provision has been criticized for its failure to provide direct protection to non-citizens. 245 While it is desirable that such protection is aff orded, to criticize Iraq on this ground would be to hold it to signifi cantly higher standards than every other country in the region, and the majority of the countries in the world.

As is standard practice, the relatively passive non-discrimination provision is supplemented by a more active provision that emphasizes the goal of equality of opportunities: ‘Equal opportunities shall be guaranteed to all Iraqis, and the state shall ensure necessary measures to achieve this are taken.’ 246

Th is provision sets the ground for the establishment of affi rmative action measures to overcome the unequal starting points that minorities face in society. While too early to draw conclusions, Article 16 ought to become a rallying point for policy-makers keen to frame appropriate policies in the realm of political participation, education, and a host of other minority specifi c concerns. In terms of political participation, this may enable adjustment over current provisions in the Constitution, which, in allocating seats in the primary legislative body on the basis of head of population, disadvantage minorities. 247 Once again though, this provision is ‘normal’ and any other articulation would place Iraq in a superior position vis- à -vis minority protection. Th e exception to the general trend would be countries with quotas or ‘reserved seats’ for minorities in the primary legisla- tive/representative bodies. 248 In terms of the other rights of minorities, Article 125 of the Constitution does seek to augment the minority-friendly ethos, stat- ing: ‘Th is Constitution shall guarantee the administrative, political, cultural and educational rights of the various nationalities such as the Turkomen, Chaldeans, Assyrians, and all other constituents, and this shall be regulated by law.’ 249

Th e use of the word ‘nationality’ is signifi cant, as is the specifi c reference to smaller communities that may be under-represented in the future. Against this, it is notable that Kurds are not identifi ed as a ‘nationality’ even though, as exam- ined below, specifi c provisions for their autonomy have been established.

Section 2 of the Constitution, consisting of 23 articles, entitled ‘Rights and Liberties’, is further divided into chapters, with chapter 1 containing ‘Rights’

²⁴⁴ See our earlier discussion on this question at page 228. ²⁴⁵ Th is criticism was attributed to John Packer in an interview with the Taneja (n 104) 27. ²⁴⁶ Article 16, Constitution of Iraq 2005. ²⁴⁷ Ibid Article 49. ²⁴⁸ Th is exists notably in India, see J Castellino and E Dominguez Redondo, Minority Rights in Asia:

A Comparative Legal Analysis (Oxford University Press 2006) 92–4. For more on affi rmative action measures in the context of caste, see DP Keane, Caste Based Discrimination in International Law (Ashgate 2007). ²⁴⁹ Article 125, Constitution of Iraq (2005).

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and chapter 2, ‘Liberties’. Chapter 1 is further sub-divided into civil and politi- cal rights in one part, with economic, social, and cultural rights in the other. It begins with an equality guarantee with the grounds listed as gender, race, ethnicity, nationality, origin, colour, religion, sect, belief or opinion, or economic or social status. 250 Th e article lists sect alongside religion, and refl ects the grounds of ‘belief and opinion’ (the latter of which was missing in the religious guarantees provision in section 1). Th is section also has a specifi c article on the provision of equality of opportunity, creating a state obligation ‘to ensure that necessary measures to achieve this are taken’. 251

Other provisions impacting minorities are: Article 18 (nationality), Article 19 (judiciary), Article 30 (social security), Article 34 (education), and Article 35 (cultural activities). Under Article 18, Iraqi citizenship is available to every Iraqi on the basis of nationality. 252 Th is is further described as consisting of a right of any child born to an Iraqi father or mother to acquire Iraqi nationality. 253 Th e right to citizenship is also guaranteed against withdrawal, with any individual who has been subject to this in the past having the right to demand its restate- ment. 254 In keeping with the cross-border allegiances that exist in the region, the Constitution permits multiple citizenships, 255 while insisting that those who assume ‘senior security or sovereign’ positions abandon any other acquired citizenship. 256

Th e exclusion of a minority rights component in two provisions where they would be expected must be understood in light of the constitution-building process: constructive ambiguity and inter-ethnic bargaining are common fea- tures in states emerging from ethno-religious strife. Article 19 (the judiciary) and Article 34 (education) omit specifi c minority rights provisions. Article 19 identi- fi es provisos and conditions to be upheld for a fully functioning judicial system 257 but makes no provision for a representative judiciary from across ethno-religious and linguistic divides: a provision included in relation to the armed forces. In the judicial system, which was still being fashioned, a positive role for minority representation could have been benefi cial and created greater legitimacy for this key institution. Similarly, while provisions were made in the context of linguistic rights, the right to minority education does not feature in Article 34. 258 Th is would have been an appropriate response to historic fears among minorities of

²⁵⁰ Ibid Article 14. ²⁵¹ Ibid Article 16. ²⁵² Ibid Article 18(First). ²⁵³ Ibid Article 18(Second). ²⁵⁴ Ibid Article 18(Th ird, A). But this does not apply to those who have naturalized whose Iraqi

citizenship may be withdrawn under Article 18(Th ird, B). ²⁵⁵ Ibid Article 18(Fourth). ²⁵⁶ Ibid. ²⁵⁷ Ibid Article 19. ²⁵⁸ Ibid Article 34 makes primary education mandatory (First), free (Second), encourages research

and scientifi c progress (Th ird), and guarantees private and public education (Fourth).

Minority Rights in Iraq232

Arabization through education, and it is only partly off set by the status given to the Kurdish language.

Article 35 provides for cultural rights: ‘Th e state shall promote cultural activi- ties and institutions in a manner that befi ts the civilizational and cultural history of Iraq, and it shall seek to support indigenous Iraqi cultural orientations.’ 259

Th is remains the only article in the Constitution to use the word ‘indigenous’. While several cultural practices and manifestations could come under its protec- tion, this term introduces the notion of indigeneity, otherwise avoided in the Constitution.

Overall the provisions of section 2 in chapter 1 are limited in off ering specifi c minority protection. Th is part of the Constitution appears divorced from the previous section, which seemed keen to celebrate Iraq’s religious, linguistic, and cultural diversity.

Many of the liberties contained in chapter 2, section 2, have particular rel- evance to minorities. One of these concerns internal displacement and its con- sequences, guaranteeing protection of the individual from coercion, whether intellectual, religious, or political. 260 In the general context of liberty, 261 this sub-article addresses the widespread issue of smaller minorities being coerced to Arabize or Kurdify when seeking homes in particular provinces. Th is provision also guarantees the freedom of movement and residence within Iraq contained later in the Constitution: an article that protects against forced expulsions or dep- rivations of homeland. 262 While a reaction to activities under Saddam Hussein, upholding this provision would have a positive impact on minorities in Iraq today. Th e Constitution guarantees the freedom of expression 263 and association of all citizens, 264 which could assist in the creation of greater cohesion and cul- tural identity for minorities.

In elaborating religious rights, the Constitution states: ‘Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs, or choices, and this shall be regulated by law.’ 265

Various religious and spiritual practices such as marriage, worship, pilgrim- ages, places of reverence, and homage are protected. 266 While safeguarding these, the article signals the need for Parliament to enshrine specifi c legislation to pro- tect the general population against excesses from the exercise of an unfettered right. Th is exhortation is buttressed by Article 43, which, while guaranteeing the

²⁵⁹ Ibid Article 35. ²⁶⁰ Ibid Article 37(Second). ²⁶¹ Ibid Article 37. ²⁶² Ibid Article 44. ²⁶³ Ibid Article 38. ²⁶⁴ Ibid Article 39. ²⁶⁵ Ibid Article 41. ²⁶⁶ See, for instance, the discussions that took place in 1922 in the context of the change of sover-

eignty from British to Iraqi control, discussed in Foster (n 7) 257.

3 Rights of Minorities 233

freedom of worship and protection of places of worship, 267 provides freedom for the manner of worship. 268 Religious protection is also linked to the development of civil society as articulated in Article 45. Framed as a general norm enshrining the obligation of the state to support civil society institutions and develop and preserve their independence, it includes the provision that:

Th e State shall seek the advancement of the Iraqi clans and tribes, shall attend to their aff airs in a manner that is consistent with religion and the law, and shall uphold their noble human values in a way that contributes to the development of society. Th e State shall pro- hibit the tribal traditions that are in contradiction with human rights. 269

Like the word ‘indigenous’, this constitutes the only time the word ‘tribe’ is used. Th e state is charged with the obligation of seeking the advancement of the clans and tribes, while taking specifi c action to eradicate tribal traditions con- tradicting human rights. Considering the limited usage of ‘human rights’ in the Constitution, 270 its use here in limiting rights on the only occasion when tribal rights are mentioned is disappointing. Th e article also raises questions of cultural relativism concerning tribal traditions, ignored in other contexts where this may be equally germane.

Chapter 2, section 3 outlines the executive powers contained in the Constitution. It is a particularly sensitive attempt to prevent the seizure of power by one individual, as occurred during Saddam Hussein’s rule. 271 It also lays down the principles governing the creation of the Council of Ministers and the Prime Minister. 272 Among the organs created, the following are worth dwelling upon briefl y:

(1) Th e Council of Representatives 273

Th is body is created respecting the ratio of one representative per 100,000 Iraqis. 274 While no minority quotas are specifi ed, provision is made to ensure that at least one quarter of the membership of the body will consist of women. 275 It has a wide range of competencies, as specifi ed in Article 61, including:

i) the enactment of federal laws; 276 ii) monitoring the performance of the executive; 277

²⁶⁷ Article 43(Second), Constitution of Iraq (2005). ²⁶⁸ Ibid Article 43(First). ²⁶⁹ Ibid Article 45(Second). ²⁷⁰ Th is phrase is used only three other times, twice in the context of information collected by the

Iraqi National Intelligence Service (Articles 9(First, D) and 83(First)), and once to introduce the mandate of the Iraqi Human Rights Commission. ²⁷¹ Via Articles 66–74, Constitution of Iraq (2005). ²⁷² Ibid via Articles 75–85. ²⁷³ Created through ibid Article 48. ²⁷⁴ Ibid Article 49(First). ²⁷⁵ Ibid Article 49(Fourth). ²⁷⁶ Ibid Article 61(First). ²⁷⁷ Ibid Article 61(Second).

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iii) electing the President of the Republic; 278 iv) regulating the ratifi cation of international treaties and agreements; 279 v) approving Ambassadorial, Judicial, and Iraqi Army Chief of Staff , his

assistants, those of the rank of division commander and above, and the director of the intelligence service, based on a proposal from the Council of Ministers; 280

vi) questioning, engaging, and if necessary impeaching the President; 281 vii) questioning and engaging with the Prime Minister; 282

viii) instigating votes of no confi dence in Ministers or the Prime Minister; 283 ix) the power to declare war and invoke a state of emergency. 284

(2) Th e Federation Council 285

Th is provision, which has not, to date, been implemented is to be constituted through a two-third majority vote:

. . . to include representatives from the regions and the governorates that are not organ- ized in a region. A law, enacted by a two-thirds majority of the members of the Council of Representatives, shall regulate the formation of the Federation Council, its membership conditions, its competencies, and all that is connected with it. 286

In chapter 3, section 3 the architecture for judicial power to be exercised in the state is outlined. 287 As highlighted, in none of the judicial appointments is there specifi c provision for adequate representation of minorities or women. Instead the system is supported through independent commissions established under chapter 4, section 3 of the Constitution. 288 Many of these are likely to address issues concerning rights, especially the High Commission on Human Rights, the Independent Electoral Commission, and the Commission on Public Integrity. 289 Two other commissions created by the Constitution are likely to be crucial to the conduct of minority rights in Iraq. Th e fi rst, a special commission instigated to ensure fairness in the context of the rights of the region, is composed in the following text:

A public commission shall be established to guarantee the rights of the regions and gover- norates that are not organized in a region to ensure their fair participation in managing the various state federal institutions, missions, fellowships, delegations, and regional and inter-

²⁷⁸ Ibid Article 61(Th ird). ²⁷⁹ Ibid Article 61(Fourth). ²⁸⁰ Ibid Article 61(Fifth). ²⁸¹ Ibid Article 61(Sixth). ²⁸² Ibid Article 61(Seventh). ²⁸³ Ibid Article 61(Eighth). ²⁸⁴ Ibid Article 61(Ninth). ²⁸⁵ Created through ibid Article 48. ²⁸⁶ Ibid Article 64. ²⁸⁷ Ibid Article 88. ²⁸⁸ Ibid Articles 102–7. ²⁸⁹ All established under ibid Article 102.

3 Rights of Minorities 235

national conferences. Th e commission shall be comprised of representatives of the federal government and representatives of the regions and governorates that are not organized in a region, and shall be regulated by a law. 290

Th is is a transparent eff ort at seeking prominence for regional institutions and governments. However, it precedes what is a signifi cantly more contentious issue in the context of the future of Iraq, namely the sharing of revenues. Rather than elucidating any principles, the Constitution envisages the creation of an inde- pendent commission to address this issue, provided for in the following words: ‘A public commission shall be established by law to audit and appropriate federal revenues, comprised of experts from the federal government, the regions, the governorates, and its representatives . . . ’ 291

Th e commission is charged with:

i) verifi cation of fair distribution of monies; 292 ii) verifi cation of use and distribution of federal fi nancial resources; 293

iii) the guarantee of transparency and justice in connection with the distribu- tion of resources between the centre and the regions. 294

Th e Constitution also makes an important statement in Article 111, under sec- tion 4, outlining the powers of the federal government, stating that ‘Oil and gas are owned by all the people of Iraq in all the regions and governorates.’ 295 With a view to expropriating value from existing assets, the following stipulation is made:

Th e federal government, with the producing governorates and regional governments, shall undertake the management of oil and gas extracted from present fi elds, provided that it distributes its revenues in a fair manner in proportion to the population distribution in all parts of the country, specifying an allotment for a specifi ed period for the damaged regions which were unjustly deprived of them by the former regime, and the regions that were damaged afterwards in a way that ensures balanced development in diff erent areas of the country, and this shall be regulated by a law. 296

In the development of new oil fi elds:

Th e federal government, with the producing regional and governorate governments, shall together formulate the necessary strategic policies to develop the oil and gas wealth in a way that achieves the highest benefi t to the Iraqi people using the most advanced tech- niques of the market principles and encouraging investment. 297

²⁹⁰ Ibid Article 105. ²⁹¹ Ibid Article 106. ²⁹² Ibid Article 106(First). ²⁹³ Ibid Article 106(Second). ²⁹⁴ Ibid Article 106(Th ird). ²⁹⁵ Ibid Article 111. ²⁹⁶ Ibid Article 112(First). ²⁹⁷ Ibid Article 112(Second).

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Th e sharing of resources is signifi cant and probably the one issue that, resolved fairly, could maintain the territorial integrity of Iraq within its current boundaries. Failure to address the resource question fairly would strengthen the already considerable case being made for secession of Kurdish-dominated oil-rich areas of Iraq (examined in greater detail below). 298 Suffi ce to highlight, the Constitution makes a number of provisions for autonomy, and seeks to expressly enumerate competencies and the relationship between the regional and central government. Th us, the administrative structure of Iraq consists of ‘a decentralized capital, regions and governorates, as well as local administrations’. 299 Th e regions are given the right to adopt their own constitution that defi nes its power structures, articulates its mechanisms for the exercise of authority, 300 and envisages the pos- sibility of organizing security forces. 301 Within this system, Kurdistan is expressly recognized as a federal region. 302 Article 113 identifi es ‘shared competencies’ including the management of customs, the regulation of electricity and its distri- bution, environmental issues, planning issues, public health and education, and water resources. 303 Th is is supplemented by a provision that privileges regional governments over the federal in the case of issues not specifi cally attributed to the executive, while prioritizing the laws of the regions and governorates over the federal. 304 Th e all-important question of resource sharing is enshrined in Article 121:

Regions and governorates shall be allocated an equitable share of the national revenues suf- fi cient to discharge their responsibilities and duties, but having regard to their resources, needs, and the percentage of their population. 305

Th e provisions in the Iraqi Constitution on federalism could be said to surpass those contained in the vast majority of states’ constitutions. 306 It is equally clear that the text is the result of political bargaining by the strong Kurdish minor- ity. In years to come, the test will be whether the provisions contained in the Constitution are exercised, and whether this could constitute a coherent ‘settle- ment’ of the Kurdish quest for statehood in the Iraqi context, compared to the attempts made by King Faysal. 307

²⁹⁸ For the Constitutional implications, see M Moore, ‘Th e Ethics of Secession and Post-invasion Iraq’ (2006) 20 Ethics & International Aff airs 55 and PA Clark, ‘Taking Self-Determination Seriously: When can Cultural and Political Minorities Control Th eir Own Fate?’ (2005) 5(2) Chicago Journal of International Law 379. ²⁹⁹ Article 116, Constitution of Iraq (2005). ³⁰⁰ Ibid Article 120. ³⁰¹ Ibid Article 121(Fifth). ³⁰² Ibid Article 117(First). ³⁰³ Ibid Article 114. ³⁰⁴ Ibid Article 115; also see Article 121. ³⁰⁵ Ibid Article 121(Th ird). ³⁰⁶ For an insight into other federal systems’ constitutions see S Choudhary (ed), Constitutional

Design for Divided Societies; Integration or Accommodation? (Oxford University Press 2008). ³⁰⁷ See A Hyman, ‘Elusive Kurdistan: Th e Struggle for Recognition’ (1986) Confl ict Studies 214.

3 Rights of Minorities 237

Minorities also merit a mention in the Constitution in provisions made for local administration under chapter 4. Article 125 provides:

Th is Constitution shall guarantee the administrative, political, cultural, and educational rights of the various nationalities, such as Turkomen, Chaldeans, Assyrians, and all other constituents, and this shall be regulated by law. 308

Th e issue of property claims due to displacement of minority populations, is addressed through the creation of the Property Claims Commission. 309 Th is sec- tion also makes explicit reference to Kurdistan, validating legislation enacted in the region since 1992, issued by the government of the region of Kurdistan. 310

When read through a minority lens, Taneja concludes that, although the Constitution:

. . . in many ways . . . stands up to scrutiny as being one of the most positive steps for minor- ity groups and Iraqis in general since 2003, when dissected under the lens of minority interests it is clear more can be done. Minority groups have been left with a sense of dis- crimination and disappointment: despite having suff ered alongside their fellow Iraqis under Saddam Hussein since 2003, the future may not off er them as much protection and security as they have a right to. 311

Elsewhere, she highlights that:

Iraq’s minorities face a mammoth task for recognition in their war-torn country on its road to stability. Th is task is fuelled by a strong desire expressed by minority representatives to remain in their homeland and not to give in to intimidation. 312

While not denying the veracity of either statement, it is not always clear that the challenge facing minorities can be overcome through constitutional remedies. Many minorities felt disenchanted with the Constitution, and well-founded questions remain about its legitimacy and durability. However, viewed strictly as a Constitution in comparison to others, it could be said that this document aspires to high standards in the realm of minority protection. In fact, in its attempt to be genuinely accommodating of minorities, the Constitution may actually sow the seeds of its destruction by making it less legitimate in the eyes of the majorities.

To return to the question identifi ed at the outset of this section, it is clear that for this Constitution to be meaningful it would need to pass the legitimacy and durability tests. Th e impossibility of making predictions concerning the future of Iraq also applies to its constitutional arrangement. While the Constitution has been passed through a referendum, questions about its legitimacy have con- tinued to surface. Th e original agreements concomitant to the drafting of the Constitution made it clear that the First Parliament would have the authority to

³⁰⁸ Article 125, Constitution of Iraq (2005). ³⁰⁹ Ibid Article 135. ³¹⁰ Ibid Article 140. ³¹¹ Taneja (n 104) 28. ³¹² Ibid 29.

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review it. Th is was realized by that fi rst Parliament in the establishment of the Constitutional Review Committee (CRC), which was set up on the 25 September 2006. Th e nature of the CRC meant it was, ostensibly, the best placed to address continuing legitimacy questions, which circled around some key indicators:

(1) independence of drafters; (2) credentials of drafters; (3) ‘democratic consent’ (of the state as a whole); (4) issue of representation (of the various sub-groups and identities); (5) adherence to composite ‘Iraqi’ values; (6) ‘quality’ viz human rights for the vulnerable; (7) legitimacy of process; (8) legitimization through subsequent actions.

At the time of its passage, the Electoral Commission offi cials confi rmed it had the express support of 78 per cent of the voters (21 per cent opposed). Th is broke down to validation by 16 provinces, with 2 opposed. For a rejection, two-thirds would have to indicate opposition in 3 of the 18 provinces. In case of rejec- tion, the assembly elections would have been invalidated, fresh elections would have been needed, and the drafting would have needed to recommence. Th e credentials of the drafters is likely to be under scrutiny, since the Chairman of the Drafting Committee, Humam Hamoudi, leader of the military wing of the Supreme Islamic Iraqi Council, better known as the Badr Organization, regularly made statements alluding to not compromising with Sunnis. Campaigning fol- lowing the articulation of the draft Constitution, Saleh al-Mutlaq, chief Sunni negotiator, urged followers to vote against it. He was supported by the Iraqi Accord Front, the biggest Sunni block. Sunni dissent led to several extensions in the drafting deadline.

Th e mandate of the CRC included the authority to overcome the problematic origins of the Constitution. 313 Th e CRC set itself a deadline of 15 May 2007 to submit its recommendations on Constitutional amendments. 314 As the rec- ommendations by the Committee intersected with a number of politically con- tentious issues (particularly in relation to control over natural resources), the fi nal submission of the CRC was delayed and its fi nal report 315 was submitted in July 2009 and referred to the Council of Representatives for approval but has remained (to date) dormant. 316

³¹³ As Constitutions are almost always drafted by elites and, historically, can gain acceptance over time, it is possible to argue that although the drafting process of the Iraqi Constitution is problematic that it may gradually gain acceptance. ³¹⁴ UN Security Council, Report of the Secretary-General Pursuant to Paragraph 30 of Resolution 1546

(2004) , 5 December 2006, S/2006/945 at 8. ³¹⁵ A copy of this report (in Arabic) can be found at: <http://www.parliament.iq/dirrasd/des.pdf>

accessed 10 July 2012. ³¹⁶ Th e most recent statement delivered through the Iraqi news agency on this process can be found

at: <http://wna-news.com/inanews/news.php?extend.3073> accessed 10 July 2012.

http://www.parliament.iq/dirrasd/des.pdf

http://wna-news.com/inanews/news.php?extend.3073

3 Rights of Minorities 239

While highlighting that ‘imposed constitutionalism’ is out-dated, Feldman, adviser to the Transitional Administrative Law (TAL) for Iraq, suggested it was increasingly common to modern constitution writing processes. He, however, distinguished modern versions of imposed constitutionalism from others, espe- cially those that occurred in the aftermath of the break-up of empires: ‘there is something theoretically and practically distinctive about imposed liberal consti- tutionalism today: it takes place against a backdrop of widespread commitment to democratic self-determination’. 317

While addressing the question of the inclusion of Islam and its potential impact on women’s rights, Feldman makes a telling point about constitutional drafting processes and how they tend toward polarization:

. . . Advocates of equality, typically outsiders, want to press for a constitutional guarantee of equality that will expressly trump any competing considerations derived from religion, or indeed from other forms of democratic politics. Meanwhile local elites—often backed by majorities empowered by the democratization process—would prefer to see a less complete victory for egalitarian values. Th ey ground their arguments in the foundational claim that the constitution is meant to express the will of the people, understood in a majoritarian or super-majoritarian fashion. 318

In outlining a conundrum faced by ‘equality advocates’ such as those who sup- port women’s or minority rights, Feldman touches on a fundamental confl ict:

It is . . . strange to hear advocates for equality of women or minorities pressing the argument that new constitutions must not provide too great a role for Islam because doing so would be undemocratic. Yet this argument is frequently made. Occassionally it takes the form of objecting to the specifi c role granted to Islamic law in a given constitutional arrangement, but very often it goes even further, to the fundamental claim that the presence of a state religion is incompatible with democracy. Th e implicit argument runs something like this; ‘Democracy’ really means liberal democracy. Liberal democracy implies liberalism. Liberalism demands the separation of religion and government. It follows that making Islam the offi cial religion in some more than symbolic way is incompatible with democracy itself. 319

Feldman also acknowledges the pressures brought to bear on the constitutional negotiation process, indicating that the most signifi cant was the debate concerning the acceptance of Islam as offi cial state religion. Th is was widely portrayed as a deci- sion that had internal legitimacy in Iraq (including among women), while being questioned by external forces. 320 In addition, he notes, ‘[b]eyond the basic impos- sibility of excluding state religion from the constitutions of . . . majority-Muslim countries, the model of imposition was also unable to overcome further powerful manifestations of the role of Islam in the constitutional texts’. 321

³¹⁷ Feldman (n 204) 860. ³¹⁸ Ibid 862. ³¹⁹ Ibid 865. ³²⁰ See e.g. N Berwari, ‘An Iraqi minority report’ Wall Street Journal (23 June 2004) A16. ³²¹ Feldman (n 204) 878.

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In presenting his opinion on whether equality and autonomy could trump popular democracy and self-determination (in the sense of a majority vote of the population), he opts for the latter, suggesting:

. . . self-determination is indispensable to the development of constitutionalism, and that constitutionalism, subject to certain initial conditions, has a long-term tendency to serve the interests of liberty and equality. I therefore am recommending a course of action that, viewed solely from the perspective of the constitutional text to be produced, might appear to produce in the short run less equality and less liberty. I am not arguing for this on the ground that, as a matter of principle, autonomy trumps equality; the balancing of such constitutional abstractions will have to wait for another day. I am proposing, rather, that autonomy and self-determination function as crucial parts of the very phenemenon of democratic constitutionalism itself. To respect them is to open the possibility of a constitu- tional space in which equality and liberty may grow. 322

4 Remedies

Away from narrow readings of Iraqi history and the nature of confl ict within and between Iraq’s communities, arguments suggesting that sectarian violence and struggles over the nature of political community in Iraq can be attributed to the diversity of its ethno-religious landscape can be challenged. Th at both sectarian- ism in public policy and inter-communal violence exist is not in doubt. What is more contestable is whether remedies based solely on reconfi guring political fault-lines along ethnic and tribal lines are a solution.

While the public policy implications of arriving at an answer to this question are clear, in reality, various groups—the US and its allies in Iraq and others—use ethnic and tribal loyalties as a means of establishing economic and political power. Th e success of these ‘sectarian entrepreneurs’ 323 is evident as minority communi- ties continue to fl ee to neighbouring states. In fact, whatever dominant narrative is to emerge over time in Iraq, the complexion of the state continues to change as signifi cant minority communities have left or been internally displaced.

Th e systematic promotion of sectarian identities, which reached its apex under the Ba ‛ th regime, has led commentators to suggest that the only solution to the question of minorities in Iraq lies in reiteration of the fundamental concept of citizenship rather than a negotiation of quotas. For Mokhtar Lamani, then Special Representative of the OIC to Iraq, the use of ethnically identifi able quotas 324 in

³²² Ibid 890. ³²³ Th is idea fi rst appeared in B Crawford’s, ‘Th e Causes of Confl ict: An Institutional Approach’ in

B Crawford and RD Lipschutz (eds), Th e Myth of ‘Ethnic Confl ict:’ Politics, Economics, and ‘Cultural’ Violence (Research Series, No 98) 20. Crawford notes: ‘If the costs of broken social contracts fall disproportionately on culturally defi ned groups, the door opens to political entrepreneurs bent on mobilizing populations along ethnic and sectarian lines.’ ³²⁴ Establishing quotas along ethnic lines underpins the theory of consociationalism. Th ere are sig-

nifi cant debates on this approach to ethnically divided societies. See J McGarry, ‘Consociationalism

4 Remedies 241

public life would hinder modernization, and, while these may provide short-term solutions to vexed questions of national representation, they would fail to move away from sectarianism and ethno-religious division. 325 Other commentators propose social and economic packages as a remedy for the instability that dominates Iraq’s political landscape. 326 Th e remainder of the chapter provides practical com- ment on these issues, and on how the Iraqi legal system, as currently confi gured, has sought to address them.

4.1 Federalism, faith, and secession

Scholars diff er in their explanation of the rationale for federalism, but usually agree that it seeks to establish ‘a “balance,” or a set of relationships, between diff erent levels or structures of government’. 327 Th e effi cacy of such a model can be assessed against a number of indicators: the role of regional governments in conducting elections for federal offi ces; the likelihood of representatives hav- ing greater allegiance to the region than the centre; and the volume of indi- viduals employed at regional versus national level. 328 Federalism is believed to be the most crucial factor in determining whether Iraq could survive as a state, or whether it fragments. 329 Yet, regionalism and federalism are new concepts to Iraq and, as such, there is no framework from the past that can be applied to the present.

Th e application of a regional federalist ‘solution’ was imported and is viewed inside and outside Iraq as a hegemonic and colonial Western technique to ensure

and its Critics: Evidence from the Historic Northern Ireland Assembly Election 2007’ (2009) 28(3) Electoral Studies 458, 458. Th e pro- versus anti-consociationalism debate is typically associated with A Lijphart and D Horowitz. See, for example: A Liphart Democracy in Plural Societies: A Comparative Exploration (Yale University Press 1977) and Th inking about Democracy: Power Sharing and Majority Rule in Th eory and Practice (Routledge 2008); D Horowitz Ethnic Groups in Confl ict (University of California Press 2000). ³²⁵ Th is is from his new report (hard copy on fi le with authors). ³²⁶ Lukitz argues for greater engagement with issues of the ‘social mobilization package’ including

a blend of ingredients such as literacy, urbanization and education. See Lukitz (n 7). See also E Davis ‘Th e Political Economy of Modern Iraq’, in D Sorenson (ed), Interpreting the Middle East: Essential Th emes (Westview Press 2010) and ‘Rebuilding a Non-Sectarian Iraq’ (2007) VI(6) Strategic Insights . ³²⁷ VC Jackson, ‘Comparative Constitutional Federalism and Transnational Judicial Discourse’

(2004) 2(1) International Journal of Constitutional Law (2004) 91, 102. ³²⁸ Ibid. Jackson goes on to note that: ‘Constitutions are created by, or require the approval of, exist-

ing power holders; existing power holders have strong incentives to be able to envision present and future balances and shifts of power depending on diff erent structures of governance; and constitution drafters have some incentives to respond to those concerns’ (105–6). Th is is relevant in Iraq as the existing power holders are backed by occupation forces. In the discussions about post-occupation Iraq, emphasis is always placed on the security question. However, it could equally be argued that the extent to which the power structures created have democratic legitimacy in the eyes of the population is an equally stern indicator of both the security and the survival question. ³²⁹ For more on this issue, see RW Howe and AI Killgore, ‘Should Iraq Be Partitioned?’ (2006) 25

Th e Washington Report on Middle East Aff airs and A Rafaat, ‘An Independent Kurdish State: Achievable or Merely a Kurdish Dream?’ (2007) 32 Th e Journal of Social, Political, and Economic Studies 267.

Minority Rights in Iraq242

that Iraq remains weak. 330 Irrespective of the accuracy of that interpretation, the benefi ts of, and support for, regional federalism are not obvious, and inter- nal public polling suggests resistance to the idea amongst Iraqi civil society. 331 Internally, the main (but not exclusive) sect that rejected the idea of federalism was the Sunni. Th ere are a number of factors that contribute to unease amongst Iraq’s Sunni population for a Federalist Iraq. First amongst these is the fear that federalism may lead to the creation of an autonomous Shi ‛ a area in southern Iraq (similar to that in the Kurdish north) that would be under Iran’s infl uence. Secondly, is that greater autonomy for the Kurdish north and Shi ‛ a south may compromise Sunni share of revenues from the nine governorates that also contain southern Iraq’s vast oil fi elds. With the Kurdish north and these nine governo- rates potentially under autonomous rule, Sunni Arabs would then be confi ned to form a region in the governorates of Al-Anbar, Ninawah, Salah Al-Din, and Diyala, none of which are known to have any substantial oil reserves. 332

By contrast, the most cited benefactor of a weak, fragmented Iraq, which facil- itates unfettered access to Iraq’s oil reserves, has been the United States and the West. Th ere are other critiques of federalists’ (and accompanying power-sharing/ consociational) solutions to state building in Iraq. Th e idea that a federalist solu- tion might strike the match that ensures a showdown in the region between Shi ‛ a and Sunni communities, 333 with such measures fuelling insurgency, is prominent amongst these critiques. 334 Yet as Visser argues, ‘given the sacrosanctity of the territorial unity of Iraq in both Sunni and Shi’ite discourse’, there has been an overemphasis on the territorial aspect of sectarianism in Iraq, instead of facing the ‘local realities’ and addressing the ‘real and pressing questions’, ‘resources are devoted to solving non-existent territorial issues between the sects’. 335

Unease over the role of religion in the public square features prominently in the state-crafting process in Iraq. As discussed, the Constitution makes specifi c references to religion, 336 with genuine fears among some stakeholders that Iraq may slide towards a theocracy. 337 As one commentator posited:

³³⁰ On this point, see, in particular, T Ismael and J Ismael, ‘Th e Sectarian State in Iraq and the New Political Class’ (2010) 4(3) International Journal of Contemporary Iraqi Studies 339, 345–50. ³³¹ On this, see R Visser, ‘Th e Territorial Aspects of Sectarianism in Iraq’ (2010) 4(3) International

Journal of Contemporary Iraqi Studies 295. ³³² For more on this see, S Al-Assaf, Ali Dhahir Ali, and Kai Brand-Jacobsen, Searching for Peace in

Iraq (NOVA & PATRIR 2012) 61–2 available online at: <http://issuu.com/nova_social/docs/search- ing_for_peace_in_iraq> accessed 2 July 2012. ³³³ D Hirst, ‘Th e carve-up of Iraq will spawn a re-division of the Middle East’ Th e Guardian (18

October 2005) 28. ³³⁴ A Lyon, ‘Iraqi constitution weak, says Crisis Body Report’ Irish Times (27 September 2005) 15. ³³⁵ R Visser, ‘Th e Territorial Aspect to Sectarianism in Iraq’ (2010) 4(3) International Journal of

Contemporary Iraqi Studies 295, 303. ³³⁶ O Poole, ‘US yields to demand for Islamic role in Iraq laws’ Th e Daily Telegraph (22 August

2005) 10. ³³⁷ Editorial, ‘ Iraq’s slide to Iranian theocracy’ Sunday Business (14 August 2005) 1.

http://issuu.com/nova_social/docs/searching_for_peace_in_iraq

4 Remedies 243

Is Iraq a strong, centralised state keen to revive its role as an Arab champion? Is it another Yugoslavia, a cauldron of ethnic and religious tensions destined for civil war? Is it a western-oriented democracy heralding reform in the Middle East? Is it a failed experiment on the road to autocracy and theocracy? 338

Th e question of whether there can be faith in democracy is not unique to Iraq and recent changes in Nigeria merit note. Nigeria bears similarities to Iraq in that it has traditionally and historically been pluralistic. Pre-colonial Nigeria was esti- mated as consisting of 250 nations with over 500 ethnic and linguistic groups, 339 most operating independently until amalgamation by Lord Lugard 340 in 1914. From 1914 to 1953, when federalism was introduced, Nigeria operated as a uni- tary state and was constituted into 12 states after independence in 1963. 341 After modifi cations and reconfi gurations, it today consists of 36 states and the fed- eral capital territory. As Oba suggests, for such a system to operate eff ectively, legal pluralism is a necessity. 342 In a striking similarity to Iraq, Nigerian politics has been dominated by three ethnic groups: the Hausa-Fulani, the Yoruba, and the Ibos, with religious fault-lines, that transcend ethnicity, between Christians and Muslims. Questions as to how to negotiate the tensions between faith and democracy are raised beyond the Middle East. In a 1998 decision, Justice Wali of the Supreme Court (of Nigeria) argued, ‘Islamic Law is not the same as custom- ary Law as it does not belong to any particular tribe. It is a complete system of universal Law, more certain and permanent and more universal than the English Common Law.’ 343

Yet, negotiating this tension is crucial and, we argue, possible. Another criti- cal question to be considered in the context of Iraq’s Constitution is the right to secession: whether it ought to exist, and how it might impact the future of the state. 344 As Jackson highlights:

Although federal structures are often discussed as solutions to tribal, ethnic, or nationalist confl icts, federalism may rigidify or even exacerbate the divisions that it seeks to manage. Federal systems may facilitate secession, insofar as they provide boundaries within which plebiscites can be conducted and which can be used to defi ne a new state . . . 345

Th is reiterates Horowitz’s argument about the limits of territorial solutions to eth- nic confl icts, and his view of the growth of secessionist movements as potentially

³³⁸ Editorial, ‘Haggling over constitution exposes deep divisions confronting the people of Iraq’ Irish Times (16 August 2005) 8. ³³⁹ AA Oba, ‘Islamic Law as Customary Law: Th e Changing Perspective in Nigeria’ (2002) 51(4)

International & Comparative Law Quarterly 817, 817. ³⁴⁰ Sir Frederick Lugard was Governor General of Nigeria between 1914 and 1919. ³⁴¹ Oba (n 339) 817. ³⁴² Ibid 818. ³⁴³ Alhaji lla Alkamawa v Alhaji Hassan Bello and Alhaji Malami Yaro [1998] 6 SCNJ 127. ³⁴⁴ Jackson (n 327) 116. ³⁴⁵ Ibid.

Minority Rights in Iraq244

harmful to minorities. 346 It raises the question as to whether states emerging from complex ethno-religious rivalries, such as Iraq, ought to include the right to seces- sion. Also related is the status and value to be attributed to the Iraqi Constitution as a ‘fi nal settlement’ of such rivalries. 347 Weinstock argues that compelling moral grounds for secession do not suggest the need for the constitutionalization of such a right. 348 Rather, he suggests that three issues ought to be considered before creating a constitutionally based right to secession: fi rst, that secession does not ‘involve the violation of an absolute moral prohibition’; secondly, that secession movements are ‘inevitable’; and, thirdly, that the consequences of including pro- cedures for secession will be better than leaving secession unregulated. 349

Having examined various constitutions through the lens of whether to include the right to secession, Jackson concludes there is no adequate evidence for draw- ing fi rm conclusions vis- à -vis its inclusion. 350 She believes ‘it is, at best, unclear whether any of the benefi ts hypothesized by secession theorists have accrued from the presence of a general right to secede—whether in terms of avoiding secession, constraining abuse of minorities by the central government, or assuring the just- ness of the terms of the secession’. 351

In discussing the future of the region from an Iraqi perspective, one commen- tator argues that the Kurds, the biggest losers in post-Ottoman settlements, could be the biggest winners. He emphasizes the impact of the events then against the more contemporary setting:

Th e 1916 Sykes–Picot agreement . . . drew arbitrary, colonial-style frontiers across pre-existing ethnic, sectarian, tribal or commercial links and grossly aff ronted the emer- gent, essentially Sunni-dominated pan-Arab nationalism and aspiration to unity that came with liberation from Ottoman rule. Eighty years on, Iraq now portends yet another layer of divisions that will either supplement existing ones or, some of them being undoubtedly more ‘natural’ than the old ones, erase them altogether. 352

Th e renegotiated structures of the state accept a Kurdish regional government, and Hirst argues that the powers gained are substantial. 353 Th ese include the mandate for legislative powers across the region, control over a Kurdish militia, favourable resource sharing with the centre and authority over new discoveries of oil. 354 Any remedies designed to maintain the territorial integrity of Iraq would need to overcome strong Kurdish claims for separatism, especially in light of the

³⁴⁶ DL Horowitz, ‘Self-Determination: Politics, Philosophy and Law’ in M Moore (ed), National Self-Determination and Secession (Oxford University Press 1998) 14–15. ³⁴⁷ Jackson (n 327) 122. ³⁴⁸ Ibid 123. ³⁴⁹ D Weinstock, ‘Constitutionalizing the Right to Secede’ (2001) 9 Journal of Political Philosophy

182–203. ³⁵⁰ Jackson (n 327) 126. ³⁵¹ Ibid 126–7. ³⁵² Hirst (n 333) 28. ³⁵³ Ibid. ³⁵⁴ Ibid.

4 Remedies 245

relative stability and high living standard its inhabitants are currently enjoying. 355 In asserting a Kurdish claim for statehood, Hadji states:

Th e stability and autonomy that the Iraqi Kurds have enjoyed since the fall of Saddam Hussein in 2003 has presented the Iraqi Kurds with a tremendous opportunity. Th e Kurds have long dreamed of having their own sovereign state, and have suff ered greatly as a result of not having their own state. Most notably, they were the victims of a genocide infl icted by Saddam Hussein, which took the lives of as many as 182,000 civilians. Given this unfortu- nate history, and their position as the largest ethnic group in the world without a country, the Iraqi Kurds have quite a compelling case for statehood. 356

Hadji proff ers an earned sovereignty approach to the question of Kurdish seces- sion, facilitated by a gradual transition of power. Secession through ‘earned sov- ereignty’ is defi ned as entailing ‘the conditional and progressive devolution of sovereign powers and authority from a state to a sub-state entity under interna- tional supervision’. 357 He argues this approach would allow a transition whereby the Kurdish regional government would be able to secede from Iraq to form its own independent state. 358 He highlights that three elements of earned sov- ereignty are already in place for this eventuality, viz there is considerable shared sovereignty, and the institutions necessary for transition are functioning, leaving only the fi nal stage of the determination of the status, through a referendum or negotiation. 359 Hadji also highlights the extent to which Kurdish statehood serves US interests, suggesting this could be the best thing emanating out of the Iraqi invasion from an American perspective. 360

Th ere are two reasons to engage this argument. First, the degree to which vio- lence and intimidation dominates Iraq, including in the Kurdish region, makes it diffi cult to fully appreciate the wish of Iraqi society. Th e desire for an independ- ent Kurdistan is often based on an unoffi cial referendum that took place in 2005 in three Kurdish provinces, where 98.8 per cent of those polled supported seces- sion. Yet a March 2008 poll reduced that fi gure to nearly half (52 per cent) with 35 per cent favouring a federal Iraq and 10 per cent a unitary State. 361 Secondly, an oft-repeated narrative, framing Kurdistan as a ‘role model’ for the region, is, at best, premature and, at worst, fanciful. Th ere is no doubt that the governorates under the KRG are less violent and more stable, but worrying signs remain that the KRG are looking to ‘impose’ rather than facilitate Kurdish independence.

³⁵⁵ PS Hadji, ‘Th e Case for Kurdish Statehood in Iraq’ (2009) 41 Case Western Journal of International Law 513, 513. ³⁵⁶ Ibid 514. ³⁵⁷ PR Williams and FJ Pecci, ‘Earned Sovereignty: Bridging the Gap between Sovereignty and

Self-Determination’ (2004) 40 Stanford Journal of International Law 347, 350–54. ³⁵⁸ Hadji (n 355) 528. ³⁵⁹ Ibid 529. ³⁶⁰ Ibid 541. ³⁶¹ See March 2008 joint poll conducted by ABC/BBC/ARD/NHK. ABC News/USA Today/

BBC/Hard Poll, Iraq: Where Th ings Stand (19 March 2007): <http://abcnews.go.com/images/ US/1033aIraqpoll.pdf> accessed 29 November 2011.

http://abcnews.go.com/images/US/1033aIraqpoll.pdf

Minority Rights in Iraq246

And, as detailed, minority groups in the Kurdish-controlled and contested regions have been at the sharp end of struggles for control. 362

4.2 Shifting demographics

Th e forced expulsion and the phenomenon of internal displacement of minority (and other) communities was part of state policy under Saddam Hussein. 363 Th e lack of security, increasing levels of violence, and sectarian political agendas have all featured prominently in Iraq’s post-2003 landscape. So too has the enforced displacement of its minority communities. An estimated one million Iraqis were displaced as a direct consequence of the 2003 intervention, and the further two million were estimated to have fl ed the state since. Th e overall picture of displace- ment was already stark by 2008:

. . . together with those who had been displaced earlier, some fi fteen to twenty per cent of the Iraqi population—or 4.7 million people out of a total population of 27 million— remained displaced. Of this total, 2.7 million (ten per cent of Iraq’s population) are inside the country while some 2 million more are abroad, mostly in neighbouring countries. 364

Th ese shifting demographics are signifi cant, internally, in the context of an overall picture of ownership and allegiance to territory 365 as well as shaping the demographics of neighbouring states. Th ere are signifi cant refugee populations in Jordan, Lebanon, and Syria, overwhelmingly from minority communities. 366

Th e failure of the federal government of Iraq to support the refugee crisis borne by its neighbours is intertwined with ethnic identity; a signifi cant proportion of the refugees are either minority Christian communities or once politically domi- nant Sunni who the al-Maliki government sees little purchase in supporting. 367

³⁶² Th ere have been unsubstantiated reports of religious persecution in Kurdistan. During the writ- ing of this chapter, the authors continued to receive reports of intimidation against Christians living in Kurdistan and in the disputed Nineveh Plains region. At least some of the intimidation was alleged to be from the KRG security. Th e statements are on fi le with the authors. As there has yet to be inde- pendent review of these allegations, we cannot make any assessment as to their validity. ³⁶³ Th e Kurds, who staged repeated rebellions against the government, were most aff ected, along-

side the Shi ‛ a majority and the Marsh Arabs. See R Cohen, ‘Iraq’s Displaced: Where to Turn?’ (2008– 2009) 24 American University International Law Review 301, 302. ³⁶⁴ See International Organization for Migration, Emergency Needs Assessments (IOM bi-weekly

report, 15 March 2008) 1. ³⁶⁵ Ibid. ³⁶⁶ A 2009 UNHCR report noted that government fi gures for Iraqi refugees are: 450,000 in

Jordan, 50,000 in Lebanon, and 1.1 million in Syria. Whilst the numbers registered by March 2009 with UNHCR were ‘considerably smaller’: approximately 52,000 in Jordan, 10,000 in Lebanon, and 206,000 in Syria (although they also noted that as the Iraq–Syria border remained open, and there was movement back and forth, it was ‘diffi cult to establish with any clarity how many Iraqis habitually reside in Syria’). See UN High Commissioner for Refugees, Surviving in the City: A review of UNHCR’s Operation for Iraqi Refugees in Urban Areas of Jordan, Lebanon and Syria (July 2009) PDES/2009/03. In September 2010, UNHCR stated that it had registered 230,000 refugees in Syria, Jordan, and countries neighbouring Iraq. See UN High Commissioner for Refugees, UNHCR Iraq: Fact Sheet (September 2010). ³⁶⁷ Cohen (n 363) 305.

4 Remedies 247

One study estimates that nearly 8 to 12 per cent of the populations of Jordan and Syria are now Iraqi, with signifi cant impact on inter-ethnic balances in those states. 368 While refugees do not usually feature in population statistics, the Middle East is one area that has become accustomed to long-term refugees. As discussed in Chapter 3, there are large Palestinian Diasporas living in several Middle Eastern states. However, both Jordan and Syria are unwilling to accept Iraqi Palestinians. Jordan already has a non-national population estimated at 70 per cent and fears implications for national security, 369 and both the Jordanian and Syrian state security forces are concerned overtly about the impact that Iraqis in their midst are having on the ‘character of their societies and fear that their presence may ignite sectarian and ethnic confl ict’. 370 Th e already diffi cult condi- tions under which Iraqis live in Syria and Jordan make it unlikely that either country would be willing to accept an Iraqi population as a long-term solution, leaving the return to Iraq as the only viable option. 371

Th e security concern is heightened in Syria where, despite the fact that the ref- ugees are drawn from Sunni and Shi ‛ a communities, there is a fear that they are increasingly radicalized, creating friction in a relatively secular but, more recently unstable state. A second concern, but one increasingly unlikely in the current climate, is that the Syrian Ba‛th Party could serve as a beacon for former Iraqi Ba ‛ thists, impacting policy. 372 Th e failure of the government of the United States to accept responsibility for the refugee crisis is exacerbating the situation. Blaming the crisis on sectarianism rather than American action, former US Ambassador to the UN, John Bolton, famously stated: ‘Our obligation . . . was to give them new institutions and provide security. We have fulfi lled that obligation. I don’t think we have an obligation to compensate for the hardships of war.’ 373

In the wake of the 1991 uprising in Iraq, the government had forcibly expelled over 120,000 Kurds, Turkomans, and Assyrians from their homes in the towns and villages in the oil-producing area around Kirkuk. 374 Th ese communities were replaced with Arab populations from other parts of Iraq in a distinct bid to Arabize the region. 375 Although many who were displaced have returned and

³⁶⁸ See the Op-ed piece written by KH Bacon and K Younes, ‘Outside and inside Iraq’s border, a forgotten exodus’ Washington Post (20 January 2008). Th e report estimates that there are numbers of Iraqis in a range of Middle Eastern States, besides Syria and Jordan. ³⁶⁹ Cohen (n 362) 308. ³⁷⁰ A Harper, ‘Iraq: Growing Needs Amid Continuing Displacement’ Forced Migration Review

(December 2007) 53. ³⁷¹ Cohen (n 363) 312. ³⁷² For more on this debate see A Al-Khalidi, S Hoff man and V Tanner, ‘Iraqi Refugees in the Syrian

Arab Republic: A Field Based Snapshot’ (Brookings Institute 2007): <http://www3.brookings.edu/ fp/projects/idp/200706iraq.pdf> accessed 29 November 2011. ³⁷³ See N Rosen, ‘Th e fl ight from Iraq’ New York Times (13 May 2007) 40, reporting on a visit by the

then ambassador to George Washington University. ³⁷⁴ Kirkuk is estimated to hold between ten and twenty per cent of Iraq’s oil reserves. See C

Kaufmann, ‘A Security Dilemma: Ethnic Partitioning in Iraq’ (2007) 28 Harvard International Review 4. ³⁷⁵ Human Rights Watch, Iraq: Forcible Expulsion of Ethnic Minorities , vol 15 (3)(E) (2003).

http://www3.brookings.edu/fp/projects/idp/200706iraq.pdf

Minority Rights in Iraq248

sought to reclaim their properties, the policies of displacement under Hussein continue to haunt the current state-building process as the federal government and Kurdish regional government battle over the ownership of Kirkuk and its surrounding fertile plains. Internally displaced people from other parts of Iraq have sought refuge in Kirkuk, among these Christian minorities fearing for their physical safety. Th e Turkoman who were expelled are also seeking to return and are looking to Turkey for support. In the midst of this, the Peshmerga have been actively expelling Arabs from the region. On the whole, the battle for Kirkuk is a microcosm of the battle for control of stakes in Iraq.

In the general context of refugees and the internally displaced in Iraq, the failure of the incumbent government to act is seen as an opportunity for mili- tants to step into the breach and gain legitimacy among the population through provision of basic amenities and services. A more militant politics is emerging, heightened by sectarian awareness and competition, which far from embedding democracy within Iraq, runs the risk of compromising the value of order and of returning the state to a feudal society. While the government designed a National Policy to Address Displacement in 2008, its tone is ambitious and recommenda- tory, resulting in little concrete action to date. 376

In seeking remedies to displacement in Iraq, Cohen suggests a number of strategies including: creating camps or safe havens; population transfers; prop- erty and compensation mechanism; creating a viable political system; and, the implementation of a national policy to address displacement. 377 However, each of these strategies is fraught with diffi culty, since a ‘one size fi ts all’ solution is unlikely to be useful in a state where the nature of the insurgency and of inse- curity varies by region. A combination of approaches, varied, depending on the circumstances, is clearly likely to yield better results. Besides, any ‘solution’ makes a fundamental assumption that the three largest ethnic groups in Iraq would work together to fi nd solutions. Absent such commitment, all eff orts are likely to fl ounder. Getting that fi rst stage completed successfully is clearly the only way in which this American-inspired ‘solution’ can be disentangled. 378 Once this can be achieved, a range of other measures that are underway can progress to successful conclusion. Among these are: discussions about oil revenue sharing; the develop- ment of an eff ective police force and an eff ective military force with clear lines between the two; the disbanding of local militias; a more decentralized form of government; and a decision on Kirkuk. 379

If Iraq is to emerge as a strong state (democratic or otherwise) the shattered identities of its minorities will need to be rebuilt as a basic confi dence meas- ure. Besides facing physical threats, Iraqi minorities have been subject to ethnic

³⁷⁶ Cohen (n 363) 328. ³⁷⁷ Ibid 328–38. ³⁷⁸ For more on this ‘solution’ see J Gluck, From Gridlock to Compromise: How Th ree Laws Could

Begin to Transform Iraqi Politics (United States Institute for Peace Briefi ng, May 2008). ³⁷⁹ Cohen (n 363) 338.

4 Remedies 249

cleansing 380 with many fl eeing persecution and seeking refuge abroad. 381 Th e scale of the violations means that questions of accountability for crimes perpetrated ought to be part of the solution. Whether such calling into account should take the criminal prosecution route or ‘softer’ truth and reconciliation procedures can only be determined by the victims and their advocates. Th e particularities of the Saddam Hussein-led minority Sunni regime suggest that the minority voice may be submerged against more strident voices of other dominant groups. 382 To avoid this, it will be crucial that any venture is suitably vetted against minority and other interests. In the politics of desperation that underpins violence in the state, a solution that only caters for some while excluding others is unlikely to be com- prehensive. Attention will also need to be paid to the extent that the occupying powers played into the morass of crimes against humanity. 383 As Milne narrates:

Th e truth is that the US played the sectarian card from the fi rst days of the occupation, creating an administration and constitution based on a Lebanese-style confessional and ethnic carve-up of government jobs—which, in the context of Iraq’s complex and already damaged social fabric, laid the ground for a national maelstrom. Th at was fed by the vicious anti-Shia sectarianism of al-Qaida, brought to Iraq courtesy of the US invasion. Th e virus of Sunni–Shia confrontation then spread throughout the region, feeding the Arab ‘cold war’ that now splits Lebanese, Palestinians and states across the Middle East. 384

While interference in the Middle East from interested powers has contributed to the upheaval in Iraq, stability in Iraq would nonetheless need to be externally guaranteed. Perhaps these guarantors need only come from the region, rather than the wider international community. Recognizing this, a conference was held in Baghdad in March 2007 to determine the shape of the Iraqi constitution. It was attended by the US, Syria, and Iran, which demonstrates the extent to which outsiders could infl uence the future shape of Iraq. 385 Part of the mandate of the

³⁸⁰ Other violations include: Destruction and defacement of religious buildings; Mass murder of congregations gathered in and around them; Abduction, ransoming and murder of religious and civil leaders and individuals including children; and Forced conversion to Islam using tactics such as death threats, rape and forced marriage. See R Taras ‘Th e (IL) Logic of Intervention in Iraq: Sectarianism, Civil War, and the U.S. Game Plan’ (2006) 23(4) International Journal on World Peace 33; JS Yaphe, ‘War and Occupation in Iraq: What Went Right? What Could Go Wrong?’ (2003) 57(3) Th e Middle East Journal 381; S Zunes ‘Foreign Policy by Catharsis: Th e Failure of U.S. Policy Toward Iraq’ (2001) 23(4) Arab Studies Quarterly 69 and Mayer (n 200). ³⁸¹ Th is is particularly acute in the context of Iraqi Jews and Christians. See S Hanish, ‘Th e

Chaldean Assyrian Syriac People of Iraq: An Ethnic Identity Problem’ (2008) 17 Domes and S Hanish, ‘Christians, Yezidis, and Mandaeans in Iraq: A Survival Issue’ (2009) 18 Domes . ³⁸² A Hashim, ‘Saddam Hussein and Civil–Military Relations in Iraq: Th e Quest for Legitimacy

and Power’ (2003) 57(1) Middle East Journal 9. ³⁸³ For instance one editorial argues that US intervention exacerbated the Shi ‛ a–Sunni divide. See

P Cockburn , ‘A dialogue with the Sunnis will not help the Shia diffi culties’ Belfast Telegraph (9 February 2007) 1. ³⁸⁴ S Milne, ‘Comment & Debate: To free Iraq, resistance must bridge the sectarian divide’ Th e

Guardian (19 March 2009) 31. ³⁸⁵ It is believed that the proposal for the inclusion of Middle Eastern states in the Iraqi process was

one of the issues supported by Blair in the lead-up to the invasion. See Editorial, ‘Iraq’s neighbours’ Th e Times (14 November 2006) 17.

Minority Rights in Iraq250

American agenda is the famous attempt to ‘export’ democracy in the belief that this will create an inclusive society, led by a stable government in Baghdad that will eschew nuclear weapons, guarantee the steady fl ow of oil and spread such values to other parts of the Middle East. Th is naive account is tempered and infl uenced by the politics of pragmatism and the belief that ‘[a] stable, secular and prosperous Middle East is the best way to undermine terrorism’. 386 It is hard to understand the objective facts on which this statement is based, especially in the aftermath of struggles being waged against terrorism across the world. Th e rhetoric emanating from security forces of the occupying powers suggest that even should stability and prosperity be guaranteed, Iraq is likely to be locked in a battle with factions, external and internal, which will seek to shape the political terrain in Iraq for their own purposes.

Th e exogenous and endogenous challenges facing Iraq were articulated in a 2007 article and book written by Ali Allawi, the former Minister of Defence in Iraq. 387 He identifi ed four key challenges pertinent to the future of Iraq, which remain salient: Shi ‛ a ascendance and aspirations to govern Iraq; the legitimacy gained by the Kurds in seeking separate status; the sustenance of poorly designed democratic institutions; and the responses to the growth of Iran’s infl uence in Iraq. 388 Th ese challenges remain.

While Allawi was part of the contingent of political exiles that returned to Iraq under occupation and, therefore, is not without his own historical lens, his 2007 ‘Blueprint’ for Iraq, nonetheless, includes a number of proposals of note. Th e underpinning of the argument in the document is fairly straightforward—failure to secure a stable Iraq will have a signifi cant eff ect internally and regionally:

Th e seeds of another 100 years of crisis are being sown, with the Middle East consigned to decades of turbulence and the persistence of unmitigated hatreds and grudges. Th e most serious issue that is emerging is the exacerbation of sectarian diff erences between Shia and Sunni. Th at is a profoundly dangerous issue for it aff ects not only Iraq but also Saudi Arabia, Syria, Lebanon and the Gulf countries. 389

Although not prescriptive, included were several guiding principles; the fi rst of which was the establishment of a legitimate internal process to determine the future of Iraq, followed closely by the establishment of a regional consensus for upholding that solution. Th erefore, Iraqi civil society, and particularly its middle classes, long terrorized out of politics, must be reinserted back into the political

³⁸⁶ S Khiyami ‘Comment & Debate: Th e threat of Balkanisation: US policy is fuelling the disintegration of Iraq and that threatens societies across the Middle East’ Th e Guardian (13 March 2007) 34. ³⁸⁷ Ali A Allawi was Minister of Trade and Minister of Defence in the Iraqi Governing Council

Cabinet (2003–2004). He was in the Transitional National Assembly, and Minister of Finance, Transitional National Government of Iraq (2005–2006). ³⁸⁸ A Allawi, ‘ Blueprint For peace’ Th e Independent (5 January 2007) 2. ³⁸⁹ Ibid. Th e most signifi cant sub-text of the discussion is the cost of Shi ‛ a ascendancy and the pres-

sure that it could potentially place on Shi ‛ a communities in the Gulf countries as a whole.

Conclusion 251

process. 390 Th is would have a twin eff ect of stimulating and strengthening the market to enable a transfer of resources from the public to private sector with a salutary eff ect of generating employment, while instigating an aspiration of the middle classes to be engaged in governance bureaucracy, thereby, reducing pres- sures towards corruption. 391 Secondly, both Shi ‛ a and Kurdish political assertive- ness must be accepted and absorbed into Iraq’s political community.

Th irdly, there must be an attempt to ensure that the Sunni minority have a fair stake in Iraq’s future, and the ability to design eff ective remedies that could be instigated should the community feel unfairly treated. When these basic steps have been achieved, neighbouring states’ political will could be engaged, with the dual purpose of supporting the legitimate collective decision of Iraqis, while ensuring that these states will not continue to use the Iraqi crisis as a way in which to increase their own hegemony in the region. 392 Finally, there must be regional security guarantees between Iraq, Syria, Lebanon, and Jordan, with the inclusion of Iran and Turkey in a wider regional security pact.

Th ere is no doubt that whilst these principles are ambitious, they may also be useful in providing a framework for a decentralized Iraq state, with power devolved to the regions, supported by strong federal institutions that ensure fair- ness and equity.

Conclusion

Refl ecting on the possibilities for the future of Iraq entails a general houseclean- ing of some of the fl awed ‘memories of state’. We hope to have contributed to this process in the context of minority rights in Iraq, while attempting to divest this discourse from the binary frameworks seeking to capture and control it. It is not possible to dismiss the divisions that exist in Iraq nor to disregard instances of ethno-confessional violence. Equally, eff orts made to capture the underpinnings of sectarianism in Iraq—past and present—within an ethno-confessional frame- work are reductionist. Explaining Iraq in terms of primordial or socially con- structed notions of sectarian identities fails to recognize either the role of elites as sectarian entrepreneurs or the cross-cutting cleavages within Iraqi minority groups. Moreover, it neglects the empirical work which challenges the notion that these identity cleavages are fi xed and stable. What is clear from our examination is that the sectarianism that existed before 2003 is markedly diff erent to what has emerged in the post-2003 landscape. While Saddam Hussein and his Ba‛thists were sectarian entrepreneurs, they were ‘equal opportunity repressor[s]’. 393 Ethnic,

³⁹⁰ See A Dawisha and K Dawisha, ‘How to Build a Democratic Iraq’ (2003) 82 Foreign Aff airs 36, 47. ³⁹¹ Ibid 48. ³⁹² Allawi (n 388) 2. ³⁹³ D Khoury, ‘Th e Security State and the Practice and Rhetoric of Sectarianism in Iraq’ (2010) 4(3)

International Journal of Contemporary Iraqi Studies 325, 336.

Minority Rights in Iraq252

religious, and tribal diff erences were employed as part of a divide-and-rule policy but underpinned by security and power concerns with favours or repressive meas- ures not distributed on ‘explicitly sectarian lines’. 394 By contrast, the sectarian- ism that emerged post-2003 is expressly political and ‘the result of a deliberate manipulation of social diff erences that had been largely transcended in Iraq’s major urban centres through decades of national state-building’. 395 Th is new type of sectarianism has been given form through ‘political and legal mechanisms that have been institutionalised in occupied Iraq’, 396 creating ‘a vast culture of politi- cal corruption, on the one hand’, while reinforcing ‘sectarian tendencies on the other’. 397

With the US and allies’ military withdrawal, key issues of governance and security remain unresolved. Th e failure of the occupying powers to articulate a viable military or political strategy is all too clear, and follows a series of failed and crippling economic and political policies implemented in Iraq. At the time of the 2003 intervention, the lingering eff ects of UN sanctions as well as the weight of the political economy of sectarianism, left Iraq’s already fragile economy unpre- pared for the ‘shock therapy’ 398 of economic restructuring along neo-liberal lines that would follow. Added to this was the Coalition Provisional Authority (CPA) decision to dismantle the army and civil service in Iraq under a de-Ba‛thifi cation policy, which would prove to be among the most critically fl awed policy decisions taken by the Anglo-American forces in Iraq. 399 Th e demobilization of 400,000 soldiers was opposed by Iraqis across the Shi ‛ a–Sunni divide, supported only by some Shi’ite parties who, as the International Crisis Group noted, 400 expected to gain infl uence as the result of the army’s dissolution. As Yousif argued, ‘disband- ing the Iraqi army may have suited the interest of some of the sectarian allies of the United States, allowing them to eliminate an important and historically cross-sectarian institution that could wield the instruments of violence’. 401

Th e policies had two eff ects. First, the process served as a catalyst for yet another wave of emigration 402 of many of the educated and professional middle class, 403

³⁹⁴ Ibid. ³⁹⁵ Ismael and Ismael (n 330) 339. ³⁹⁶ Ibid. ³⁹⁷ Ibid 346. ³⁹⁸ Yousif (n 91) 362. ³⁹⁹ Th is was a policy intended to remove the ideology of the Ba‛th party and those who were adher-

ents to it from Iraq’s political landscape. It was fi rst mooted in a 2002 report by the Democratic Principles Working Group. See Democratic Principles Working Group Report, Final Report on the Transition to Democracy in Iraq (November 2002) (report on fi le with authors). ⁴⁰⁰ Editorial, International Crisis Group, Th e Next Iraqi War? Sectarianism and Civil Confl ict ,

Middle East Report No 52. ⁴⁰¹ Yousif (n 91) 364. ⁴⁰² A fi rst signifi cant wave happened as a result of the UN sanctions regime, which caused ‘substantial

numbers of Iraqis, many of whom were middle-class professionals, to emigrate’. See Yousif (n 91) 361. ⁴⁰³ Many of these would have been members of the Ba ‛ thist party. It is worth noting that not all

who were members of the Ba ‛ thist party subscribed to its politics or supported the regime; rather they joined in order to be able to function professionally.

Conclusion 253

the knock-on eff ect of which ‘retarded reconstruction’ and denied Iraq ‘the seg- ment of the population that is most likely to demand a liberal, non-sectarian polity’. 404 Secondly, the newly unemployed put additional pressures on an already fragile economy and provided ‘profi cient workers to sectarian militias’. 405 Th e de-Ba‛thifi cation process also fell disproportionately on the Sunni, who read these as strategic moves by an increasingly powerful Shi’ite–Kurdish alliance to coalesce power. Against this backdrop, de-Ba‛thifi cation took on greater signifi - cance in terms of the general insecurity that followed but, as detailed, the direst impact of these decisions was on minority communities. A fi rst step in rebuild- ing Iraq’s ethno-confessional groups—the minorities who stayed and those who fl ed to neighbouring states—will be to tackle the security issues that plague most governorates.

Th ese failed initiatives have left the fragile, but still present, Iraqi political community and national project devastated. As one commentator has astutely observed:

Given the desperate conditions imposed by the sanctions regime, Iraq was singularly unprepared for the military onslaught of the Anglo-American forces in 2003, and in the successive years of occupation, Iraq has been dominated by forces of sectarian violence, national disarray and factionalism . . . Th e violent sectarianism that now dominates Iraqi society is a political phenomenon, the outcome of a series of deliberately chosen policies undertaken by western occupation authorities and its Iraqi allies. 406

It is impossible to ignore that decisions undertaken primarily though not exclu- sively by the United States were intended to ensure that Iraq remains a frag- mented and weak state. 407 Undoubtedly arguments that marginalize the benefi ts of the 2003 intervention and the crafting of divisions to ensure ‘equality’ will be challenged. Yet, relying on the horrors of the past to thwart critique of the present prevents critical examination of the challenges that remain. Th e current situation in Iraq was not inevitable but the result of policy decisions deliberately taken on the basis of US and allied security and economic interests, with the creation of a stable and ‘democratic’ Iraq, a secondary and often dispensable fac- tor. Lifting the veil on what has been a constructed narrative suggests that mov- ing forward in Iraq, with so many vested interests fi rmly entrenched will not be possible in the current political landscape. Filling the current democratic defi cit requires an unseating of political elites that have benefi tted from the sectarian framing of the political community in Iraq. Th e Lebanese-style confessional sys- tem, based on a sectarian quota basis, was imposed under occupation and, like

⁴⁰⁴ Yousif (n 91) 361. ⁴⁰⁵ Ibid 363. ⁴⁰⁶ Ibid 340. ⁴⁰⁷ Ibid 352. Although the US and its allies miscalculated both the extent to which ensuring this

division would unleash the widespread violence that now dominates in Iraq and contribute to ‘the growth of Iranian regional power’.

Minority Rights in Iraq254

the Iraqi Governing Council that preceded it, institutionalized sectarianism 408 for the fi rst time in Iraq. Leaving aside the broader debates and many critiques on consociationalism, 409 what this has meant practically in Iraq is that political elites are directing appeals along ethno-sectarian lines. Minorities who have tried to be included in this pie-cutting exercise attracted the antagonism of sectarian entrepreneurs who rejected their inclusion into Iraq’s political community. Th ese emerging realities do not ‘bode well for the cohesion and functioning of the new Iraqi government’. 410 Wrestling control from these public and private interests, which have taken up residency in Iraq, will be diffi cult, if not impossible, without further signifi cant unrest and likely more violence.

Th e ‘existential battle for identity, power and legitimacy’, is ‘aff ecting not only Iraq, but the entire tottering state system in the Middle East’. 411 Th e Arab Spring of 2011 suggests that what is transpiring in Iraq must be understood within a broader struggle that involves the unravelling of ‘the unjust and unstable system that was carved out of the wreckage of the Ottoman Empire’, 412 a system held in place for the past century through a mixture of foreign occupation, interference, brutal dictatorships, and minority rule. 413 And it is a battle, we argue, that has only just begun.

⁴⁰⁸ Th is is because the distribution of seats in parliamentary elections was premised on sectarian identifi cation. ⁴⁰⁹ See I Lustick, ‘Lijphart, Lakatos, and Consociationalism’ (1997) 50(1) World Politics 88;

B O’Leary, ‘Debating Consociational Politics: Normative and Explanatory Arguments’ in S Noel (ed), From Power Sharing to Democracy: Post-Confl ict Institutions in Ethnically Divided Societies (McGill-Queens University Press 2005) 3–43; B Barry, ‘Th e Consociational Model and its Dangers’ (1975) 3(4) European Journal of Political Research 393; MCPM van Schendelen, ‘Th e Views of Arend Lijphart and Collected Criticisms’ 19(1) Acta Politica 19 and D Horowitz, Ethnic Groups in Confl ict (University of California Press 1985) 575. ⁴¹⁰ Ismael and Ismael (n 330) 348. ⁴¹¹ Allawi (n 388) 2. ⁴¹² Ibid. ⁴¹³ Ibid.

Minority Rights in Syria

Introduction

Th at sectarian entrepreneurialism plays a signifi cant role in the events that played out in Syria in 2012 is not in doubt. Th e ‘fear of sectarianism’ has undoubtedly shaped and formed ‘how the protest movement is constituted’. 1 Th e identity politics that took root under Bashar al-Asad provided a ready-made framework within which religious, social, and political divisions are articulated. Alawis, Druze, Palestinians (a majority of whom are Sunni), and Christians in Syria, whilst comprising a demographic minority, have either forged an uneasy alliance under al-Asad or have endeavoured to remain ‘neutral’. Th e fear of what will unfold if the majoritarian minority community (Sunni) takes control underpins the particularly brutal aggression displayed by the Asad regime in Homs and elsewhere in 2012.

Th e challenges of the so-called Arab Spring resulted in several concessions on the part of the government accompanied by a weakening of state institutions, which in turn has contributed to the emergence of hitherto heavily repressed dis- sent. 2 Under Bashar al-Asad, Syria experienced a limited economic liberalization, though this was off set by rising levels of corruption. 3 A state of emergency with repressive state policies has governed Syria since the 1970s. Th e recent uprisings awoke what had been a politically dormant community. Today strong sectarian identities in Syria present a threat: with fear of the potential spill-over impact of Iraqi sectarianism exacerbating this. Th ere are a number of factors that contribute to this. Th ere is a relatively porous border between Iraq and Syria and the fi ghting in Iraq has ensured cross-fertilization of dissidents who have engaged in fi ghting both in Syria and in Iraq. Th e existence of kin communities on both sides of the border has meant that many responses are kin-driven, 4 and have been, ever since

¹ S Ismail, ‘Th e Syrian Uprising: Imagining and Performing the Nation’ (2011) 11(3) Studies in Ethnicity and Nationalism 538.

² V Perthes, ‘Th e Syrian Solution’ (2006) 85(4) Foreign Aff airs 33–40. ³ See generally, H Batatu, Syria’s Peasantry, the Descendants of its Lesser Rural Notables and their

Politics (Princeton University Press 1999). ⁴ See generally, W Kemp, V Popovskiand R Th akur (eds), Blood and Brothers: Th e Responsibility to

Protect and the Problem of the Kin State (United Nations University Press 2011).

Minority Rights in Syria256

the Ottoman period. 5 Th ese factors combined with cross-border fl ow of refu- gees and the prominence of the Ba‛th party in Syria, historically linked (though distinct from) former Ba‛thist in Iraq, all contribute to fears of further regional instability.

Th e contemporary Syrian political landscape does not refl ect important his- torical antecedents in the context of human and minority rights. Aral reminds us that the Ottoman system that dominated Syrian political life for centuries con- tained elements of human rights that privileged collective rights and emphasized issues concerning social justice rather than freedom. 6 Th e Ottoman state was signifi cantly laissez-faire, with attempts to control the public sphere only com- mencing with the Tanzimat reforms towards the middle of the nineteenth cen- tury. 7 While the notion of ‘minority rights’ is accepted as originating in Eastern and Central Europe, 8 a compelling argument could be made that the Ottomans were probably among the fi rst to imbibe its spirit. In addition to the millet sys- tem detailed later, the Ottoman Empire also provided refuge as early as 1492 to the Jews of Spain when they were expelled en masse. 9 Against this, as in other post-colonial states, there has remained a fear of underlying ethnic tension that has seen the adoption of a strong national identity, in the case of Syria, accom- panied by decisions taken by the ruling elite to dampen sub-national identi- ties, in full realization of the inherent dangers in raising aspirations of long and well-established communities.

Th e ‘foundational myth’ of the millet system, both in its origins and practice has been ‘echoed by many subsequent studies’. 10 Whilst ‘non-Muslim communities in the Arab provinces were accorded a degree of international political autonomy by the Muslim authorities in the centuries leading up to the emergence of millet politics in the eighteenth century’ 11 the millet system was, in fact, ‘a relatively late- comer to the Ottoman political scene, even if its workings were always cloaked in the rhetoric of an ageless tradition’. 12 As the Ottomans built their empire by

⁵ See NJ Weinberger, Syrian Intervention in Lebanon: Th e 1975–76 Civil War (Oxford University Press 1986) 35–6.

⁶ B Aral, ‘Th e Idea of Human Rights as Perceived in the Ottoman Empire’ (2004) 26 Human Rights Quarterly 454–82.

⁷ Ibid. Historians argue that the notion of ‘the public sphere’ only emerged around this time in Europe, and it could be argued that the Ottomans developed their policies contemporaneously. For more, see M Kunt, ‘Transformation of Zimmi into Askeri’ in B Braude and B Lewis (eds), Christians and Jews in the Ottoman Empire: Th e Functioning of a Plural Society (Homes & Meier 1982) 55–68 at 56. For a diff erent interpretation of public space, see T Kuran, ‘Th e Provision of Public Goods under Islamic Law: Origins, Impact, and Limitations of the Waqf System (2001) 35(4) Law & Society Review 841–97. Special thanks are due to Benjamin White, who fi rst brought this element to our notice.

⁸ See generally, P Th ornberry, International Law and the Rights of Minorities (Clarendon Press 1991).

⁹ Aral (n 6) 475. ¹⁰ B Masters, Christians and Jews in the Ottoman Arab World (Cambridge University Press 2001)

61. ¹¹ Ibid. ¹² Ibid.

Introduction 257

acquiring territories that were largely Christian, 13 during this formative phase they ruled over populations that often had Christian majorities. Yet the aff airs of non-Muslims between the sixteenth and eighteenth centuries were important ‘only if they impinged on the state’s sovereignty’. 14 Th is period of benign neglect would allow some Christians to carve ‘alternative “traditions”’. 15 As the West intruded into Ottoman-controlled lands and social dynamics changed, however, the Ottomans sought to regulate these socio-economic changes and it was during this period that millet politics would emerge.

Th e degree to which the millet system, in practice, could accurately be described as ‘a sophisticated and comprehensive system of protection’ is questionable. 16 It did provide non-Muslims a limited collective autonomy over certain juridi- cal aff airs (mainly personal status issues). 17 Under this system, minorities were grouped together on the basis of their religious belief or sect. Muslims formed a single category irrespective of ethnicity or language. 18 Th rough the acquisition of dhimmi status, Christians and Jews benefi tted from state protection of their lives, honour, and property accompanied by autonomy to conduct their lives accord- ing to their own customs and traditions. In return for the ‘privileges’, the dhimmi paid jizya , a special tax, to the state. Th eir rights included: ‘to communicate in their own language, to regulate their civic matters according to their own (mostly religious) law, to enjoy freedom of religion and conscience, the right to set up foundations, and to arrange for their own education’. 19

Yet the millet system did not intend to eradicate diff erence—both socially and politically non-Muslims were not treated equally to Muslims. Th is was an illib- eral pluralistic system; a hierarchy where Muslims occupied the highest position and diff erence was required to maintain political order and facilitate Ottoman rule over a diversity of communities:

. . . sharp distinction [was] drawn between adherents of diff erent religions [which] may be seen as oppressive when looked at from the perspective of modern human rights doctrine. Equally, a number of impositions designed to facilitate the recognition of non-Muslims by those outside of their own community may be perceived as insulting: the house of a non-Muslim could not be higher than that of a Muslim; non-Muslims were banned from living in certain neighbourhoods; they were not allowed to dress like Muslims; they could not carry arms without special permission; they could not serve in the army; a non-Muslim

¹³ For a general explanation of the dhimmi , see K Hashemi, ‘Th e Right of Minorities to Identity and the Challenge of Non-discrimination: A Study on the Eff ects of Traditional Muslims’ Dhimmah on Current State Practices’ (2006) 13(1) International Journal on Minority & Group Rights (2006) 1–26. For an examination of the foundations of the concept, see CE Bosworth, ‘Th e Concept of Dhimmah in Early Islam’ in Braude and Lewis (eds) (n 7) 37–52, 38–40.

¹⁴ Masters (n 10) 66. ¹⁵ Ibid. ¹⁶ Aral (n 6) 475. ¹⁷ See, Hashemi (n 13) 1–26 and Bosworth (n 13) 37–52. ¹⁸ Aral (n 6), 475. ¹⁹ Ibid.

Minority Rights in Syria258

man could not marry a Muslim woman; non-Muslims could not take up employment in the public sector; they could not witness against a Muslim in a court of law; and it was for- bidden to toll the church bell loud enough to be heard from the outside. All these examples indicate that diff erence of status between Muslim and non-Muslims was institutionalized under Ottoman rule in favour of Muslims. For that reason, the intermingling of diff erent millets with Muslims was almost impossible. 20

Th ere remain confl icting reports of the extent of these divisions, with signifi - cant evidence of genuine intermingling between communities, as highlighted by Fuccaro and others. 21 One explanation for these seeming discrepancies is the temporal and geographic extent of the Ottoman period. Th us, what was true at a particular time in a particular place within the Empire’s history and geography may well be at odds with events at another time and place. For instance, there is evidence of non-Muslims working in the Ottoman army, and of credible non-Muslim testimony, technically worth half that of a Muslim, being accepted by qadis over that of implausible testimony by Muslims. 22 Th is suggests that the fragmentation of Ottoman society may not have been as great as some litera- ture suggests. Irrespective of the eff ectiveness of the laws framed, community leaders were recognized by the Sultan as Pasha and had complete autonomy over (usually his) community. Th ey played a role in the collection of taxes, acted as arbitrators in disputes and were key instigators of the establishment of community schools. Also, despite the list of diff erentiations iterated above, Aral stresses that the Ottoman Empire was recognized as particularly respect- ful of minorities who chose to live under its protection. 23 Th is would seem an appropriate conclusion in a temporal context where minorities, elsewhere, were viewed as a threat, or wilfully disregarded as subjects of law, denied any rights and colonized. 24

As detailed below, the millet system gradually gave way to a notion of unitary citizenship as part of the Tanzimat Reforms in the middle of the nineteenth cen- tury, specifi cally through the Imperial Rescript of Gülhane 1839 , with the pro- cess completed under French colonial rule. 25 However, while the 1839 legislation seemed intent on destroying the fabric of the system and creating a unifi ed body politic, its deep-rooted grounding within communities meant that the legislation had little impact. Th e Imperial Reform Edict of 1856 was subsequently passed,

²⁰ Ibid. ²¹ See e.g. N Fuccaro, ‘Ethnicity and the City: Th e Kurdish Quarter of Damascus between

Ottoman and French Rule c.1724–1946’ (2003) 30(2) Urban History 206–24. ²² See FM Gocek Th e Rise of the Bourgeoisie, Demise of Empire: Ottoman Westernization and Social

Change (Oxford University Press 1996) 35–7. ²³ Aral (n 6) 477. ²⁴ For an interesting analysis of subjects and objects in international law, see RL Barsh, ‘Indigenous

Peoples in the 1990s: From Object to Subject in International Law?’ (1994) 7 Harvard Human Rights Journal 33–62.

²⁵ Aral (n 6) 477.

Introduction 259

which removed the points of inequality between Muslims and non-Muslims. 26 Aral implies that, rather than engendering solidarity and unity, the destruction of the millet system was a mitigating circumstance in the decline of the Empire as groups sought to assert independence, backed by a variety of European powers with designs on Ottoman lands. Th is support for smaller communities inevitably resulted in the Muslim community becoming disillusioned with their own per- ceived loss of status. 27 Inter-communal confl ict between Muslim and Christian communities in 1860 highlights this tension. Th ese disputes resulted in the deaths of thousands of Christians and damage to churches. Subsequent inter- vention by European states, framed as humanitarian, should be understood in a broader context as it was these powers, with vested self-interests, that had begun to interfere in Ottoman politics, contributing to the rise of inter-communal tensions. Th e intervention is also ironic given that the standards upheld by the Ottomans towards its minorities were vastly superior to those practised at the time by European states. 28

Th is suggests that Syria ought to have been a model for multiculturalism, not least because the brand of multiculturalism that has historically fl ourished within the state is not tinted by the secularist fl avour that is the currency in western states such as the United Kingdom and Canada today. Rather Greater Syria, with its contribution to three of the world’s prominent religions, has been a place where groups have come to the fore on the basis of strong religious bonds that sought to diff erentiate them from their neighbours. Th e consolidation of these strong identities highlights three important developments that are important to understand in the evolution of inter-community relations in Syria:

(1) the emphasis of religion over ethnicity as a basis for group cohesion; (2) the growth of strong leaders authorized by rulers to secure autonomy for

their communities, and who, in turn, were accepted by their communities as their spokesmen; and

(3) the generation of inter-group rivalries that, over time, fostered a degree of suspicion between communities.

In contemporary Syria, ruled at the time of writing by Bashar al-Asad from the minority Alawite community, this group ethos has remained, with many sources ascribing the rise of the Asad regime as evidence of a strong link within com- munity orientations, though the importance of ‘clan’ or familial ties within the community can be off ered as important compelling factors in this rise. 29

One fundamental question concerning minority rights that has to be addressed at the outset in any analysis of Syria is whether the strong links between clans

²⁶ Ibid 478. ²⁷ Ibid. ²⁸ Ibid 479. ²⁹ E Zisser, ‘Th e Alawites, Lords of Syria: From Ethnic Minority to Ruling Sect’ in O Bengio and G

Ben-Dor (eds), Minorities and the State in the Arab World (Lynne Rienner 1999) 129–45.

Minority Rights in Syria260

and the corresponding coherence of intra-group identity is overstated. One read- ing suggests that Syria is characterized by the strength of its intra-community relations and that the issue of ethnic fragmentation is overemphasized. By con- trast, a second possible interpretation, somewhat mirroring Batatu’s argument in the context of Iraq, is that identity fi ssures in Syria lie as much in urban– rural divisions as in any distinction between religions and sects. 30 Although this undoubtedly plays a role, equally impactful has been sectarian entrepreneurial- ism of external actors, notably France and Great Britain. Th is is also in keeping with global trends, emphasizing the importance of sub-national identities and spawning divisions where perhaps none truly existed. 31 When studying societies from a minority rights perspective, it is important to bear in mind an important conundrum: on the one hand, the acceptance of tags based on ethnic, religious, and linguistic identities plays into the dominant discourse on fragmentation. On the other, a failure to study the impact of this phenomenon on communities that may be vulnerable undermines the human rights project of guaranteeing equal dignity and worth.

Th is leads to a fundamental question: to what extent does the term ‘minor- ity’ resonate within the Syrian context? Kedourie labels ‘minority’ and ‘major- ity’ as correlative terms of western origins, and makes interesting points about their interpretation and application to the Middle East. 32 In the West, he argues, the concept of minority and majority were infl uenced by the substitution of popular sovereignty for monarchical sovereignty, accompanied by discourses on nationalism, which irrevocably changed the dynamics of the terms. 33 Against this backdrop, these concepts arrived in the Middle East with Western colonization, ‘divorced from its conciliar and representative matrix— . . . as a free fl oating idea with great dynamism’. 34 When confronted with the millet system, the French occupiers saw an immediate opportunity to consolidate their power by exacerbat- ing these divisions. Th ey privileged group rights and attributed minority status to various communities, even though the idea went against the grain of seeking to create a single entity based on popular suff rage. As Kedourie states, the impact of this social engineering was mixed:

On the one hand, this transformation was, by and large, detrimental to the ‘millets’ and their members. But on the other hand, the new Middle-Eastern states erected on the nationality principle lacked the cohesiveness and unity which this principle is supposed to provide. Heterogeneity in polities which aspire to being nations-states is a source of great weakness. It leads to the politicization of various aspects of social life hitherto consid-

³⁰ Th is is aptly demonstrated in cartoons that appeared in Al-Jundi newspaper. See KW Martin, ‘Peasants into Syrians’ (2009) 41 International Journal of Middle Eastern Studies 4–6.

³¹ See T Franck ‘Clan and Superclan: Loyalty, Identity and Community in Law and Practice’ (1996) 90(3) American Journal of International Law 359–83.

³² E Kedourie, ‘Minorities and Majorities in the Middle East’(1984) 25(2) European Journal of Sociology 276–82, 276.

³³ Ibid. ³⁴ Ibid.

Introduction 261

ered unpolitical, and to the exacerbation of political confl icts. Suspicion and fear increase between ethnic and religious groups which had in the past led a more or less self-contained life within a state where the ruler, not the people, was the source of power and the fi nal arbiter. 35

One eff ect of this was that the need to express a distinct identity became accepted as a political idea among the millets , and this inclination spread to others within the Muslim majority who were culturally distinct from their co-religionists. 36

We argue that ours is not another ‘European’ attempt to understand inter-group relations between communities in the Middle East. Rather the starting point of this analysis is contained in the framework of the millet system as a concerted mechanism that pre-dates European ideas of minority rights. In other words, we suggest that minority rights as a mechanism pre-dates European manifestations and interest in the issue, and derives instead from the Ottoman period. In any case, irrespective of the veracity of accepting the term ‘minorities’ as a modern political grouping, 37 it is clear that politics in the region has become mobilized around groups, with these groups distinguishable from others on the basis of long-sustained historical and cultural links. While accepting this assessment, White nonetheless urges caution in using the term ‘minority’, which he suggests emerged in Syria under French colonial rule through French attempts to ‘impose a religious political order within the secular form of the nation-state’. 38 He does, however, admit that French policy only infl uenced their development, rather than brought about their existence, highlighting that contemporary ‘minori- ties’ who have begun to be subsumed under this heading could not have been mapped onto the Ottoman millet system. 39 Th e main reason for this was that the Ottoman system only applied to non-Muslims and did not pay heed to sectarian distinctions among the Muslim community; a development that obscured the diff erent political ambitions and aspirations of diverse groups such as the Sunni, Shi’a, Kurds, Alawites, Druze, Ismailiis, and others. To understand the extent to which individuals from these communities can access rights in a modern context, minority rights would appear to be a particularly insightful lens.

In purely demographic terms, the distinction between ‘minority’ and majority is contingent on the boundaries within which these groups are captured. In Syria, as in many post-colonial states, these contours have changed over time, with current boundaries the result of deal-making by colonial powers. Th e territorial demarcations of post-colonial states have materially impacted the extent to which communities may be majorities of minorities within delimited post-colonial states. Writing in 1946, Hourani identifi ed at least three previous iterations of

³⁵ Ibid 279. ³⁶ Ibid. ³⁷ B White, ‘Th e Nation-State Form and the Emergence of “Minorities” in Syria’ (2007) 7(1)

Studies in Ethnicity and Nationalism 64–85, 64. ³⁸ Ibid. ³⁹ Ibid.

Minority Rights in Syria262

the state, each of which would materially alter the ethnic balances within. Th ese consist of the territory from the Taurus Mountains (north) to Sinai (south) and from the Mediterranean (west) to the Syrian Desert (east); the northern part of the territory above, consisting of the French Mandate (the southern part, consist- ing of Palestine and Transjordan, formed the British Mandate) post-World War I; and, fi nally, the further sub-division of the French Mandate (1926–1936) into four political entities (les États du Levant) into the states of Syria and Lebanon, Latakia and Jebel Druze. 40

Th e four political entities (les États du Levant) subsequently annexed by the French acceded to Syria, and became Provinces, while Lebanon came to inde- pendence as a separate state. 41 Of these divisions, Hourani notes that only in the fi rst region was there ‘in some sense a single people’. 42 Our analysis focuses on the divisions that occurred under the French Mandate from 1926–1936 and, specifi - cally in this chapter, how these divisions were mapped out in Syria (Lebanon is discussed in Chapter 6). 43 In the context of the emergence of minorities within this geographic entity, White argues:

Some religious minorities emerge from millets, though the nation-state form had trans- formed their political circumstances. Others had not previously been recognised as mil- lets: the millet system is relevant to them only insofar as the French understanding of that system led the mandatory authorities to adopt a religiously-based political order. It is irrelevant to the emergence of ethnolinguistic minorities. 44

Th e transformation of Ottoman communities— millets —and others into nations and minorities is labelled a ‘traumatic epistemological transformation’. 45 According to White, contemporary Syrian identities emerged against the backdrop of this transformation, which would seem counter-intuitive to those who argue that it was the strength of the millet system that gave minorities their subsequent buoy- ancy in stressing their independence under new colonial structures. Discussing the emergence of the term minority, he argues:

Only when modern states appeared did the numerical inferiority of these groups become more salient than the religious cleavages separating them from the majority. In a sense, there was no articulated concept of ‘minority’ because minorities did not exist. Th e con- cept only acquires meaning once certain philosophical and geographical preconditions associated with modern states have been fulfi lled. 46

⁴⁰ AH Hourani, Syria and Lebanon: A Political Essay (Oxford University Press 1946) 4–5. ⁴¹ Also see W Hutteroth and K Abdul-Fattah, Historical Geography of Palestine, Transjordan and

Southern Syria in the Late 16th Century (Erlangen 1977). ⁴² Hourani (n 40) 4. ⁴³ For more on the geographic lay of the land and its impact on its human history see Hourani

(n 40) 4. ⁴⁴ White (n 37) 68. ⁴⁵ Ibid 65. ⁴⁶ Ibid 66.

Introduction 263

Clearly it is only when a majority have chosen to defi ne themselves along par- ticular identity fi ssures, and when the chosen identity fi ssures exclude particu- lar groups, that the concept of minorities becomes germane. However, White’s broader point about the necessary philosophical and geographical preconditions is particularly apt for an understanding of minority questions in Syria, and per- haps the region as a whole. In Syria the philosophical basis for the identifi cation of minorities during the emergence of the French colonial mandate and, subse- quently, the independent state of Syria rests on two bases: fi rst, the decision to subsume Syrian identity within a broader pan-Arab identity; and, second, the existence of the millet system, which allowed some groups autonomy in specifi c realms of their existence. Th e argument for pan-Arabism could have defeated the raison d’être of minority existence since it sought an overarching identity; however, the overtones of religion and ethnicity sat uncomfortably with com- munities such as Christians and Jews on the one hand, and Kurds on the other. For instance, the decision to deny nationality to Kurds within the governorate of Latakia who could not prove residence in Syria prior to 1945 in the context of a local 1962 census was signifi cant. Such a decision would have been impossible to implement in Damascus, where a Kurdish quarter has existed since the twelfth century. Th is decision, reversed by President Asad when facing up to protest in 2011, 47 is further evidence of the weakness of the theory of a single, imagined, all-inclusive nation. Rather, the customary rights gained by communities through the millet system continued relatively unmolested through French colonial rule, with its effi cacy only dented by the stranglehold of authoritarianism that has been the defi ning feature of post-colonial Syria.

Syria’s importance as a trading post between East and West made it an attrac- tive location for many communities to settle in from at least the third century onwards. 48 In terms of its human history, modern Syria has witnessed regular movements of populations attracted to its cities, arriving from the Syrian Desert, the Sinai, and further south from the Arabian heartlands and the Mediterranean. As early as 1946, Hourani noted the challenge of forging a unitary post-colonial state and the need to overcome sharp geographical divisions within Syria, which:

. . . helped to perpetuate the diff erences between various elements in the population, which have come into the country from diff erent directions or from the same direction at diff er- ent times: racial and tribal divisions have given rise to an intense localism of feeling, which has linked itself in various ways with the prejudices, the hostilities and the exclusiveness generated by the great political and religious confl icts of the past. 49

We will endeavour to tease out some of these issues and how they have played out in a contemporary context in the remaining four sections of this chapter. Section 1

⁴⁷ Legislative Decree No 49 (7 April 2011). ⁴⁸ For more on trade routes see Hourani (n 40) 10–11. ⁴⁹ Ibid 14.

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outlines what could be considered the relevant history of minority rights in Syria, seeking to address the important question of how minority identities emerged. Section 2 briefl y comments on the groups considered minorities, keeping with objective and subjective criteria within international standards. Section 3 attempts to outline the legal framework existing within the state for human and minority rights, while the fi nal section refl ects a range of remedies available to better protect and promote minority rights in Syria. As with other chapters in these volumes, the underlying premise that this chapter is concerned with is the extent to which legal systems may be designed that could provide adequate legal mechanisms for access to human rights for all, irrespective of their sub-national identities.

1 History

In examining the history of what could be considered ‘minority’ communities, one of the fi rst and sometimes inexorable challenges that confronts writers is that his- tory is often recounted from majoritarian perspectives. Central historical narratives concerning statehood and identity are often focussed on the activities of a domi- nant community, leaving only mosaics of information about other communities that are often contradictory and non-discrete. In examining historical sources in the Middle East, in general, and in Syria in particular, this challenge is exacerbated by the central importance of the arrival of, and attempts of diff erent communities, to co-exist within the state. In common with many post-colonial states, there is a signifi cant body of literature on Syria that is often framed from a colonial- ist perspective, which necessarily highlights particular narratives that keep with prejudices and the national interests of the colonizers. Th is presents signifi cant challenges, as the minority status of some communities may have shifted and changed over time. In order to present a useful history of these communities for a project of this nature, this section is divided into four further subsections. Th e fi rst focuses on what could be labelled ‘pre-Ottoman’ history; the second on the Ottoman Empire and its contribution to the growth of what can subsequently be identifi ed as minority rights; a third section on the attempts by the Ottomans to construct unitary citizenship; and the fi nal section details the extent to which French policy contributed to a fragmentation of the populace.

1.1 Pre-Ottoman history

Th e origins of Syria’s myriad identities can be traced to the third millennium bc . Mass population movements and settlement into territory that subsequently became Syria was already prominent at this time. Ancient historical records show that the Phoenicians and the Canaanites had settled in Syria by the third millen- nium bc and were joined by the Hebrews and the Aramaeans one millennium

1 History 265

later. 50 While the territory’s links with the rest of the world fl ourished through trade, it attracted conquerors such as the Hittites, Assyrians, Persians, Egyptians, and the Greeks. 51 Th e Greek conquest in the fourth century bc , supported by suc- cessors such as the Seleucids and Ptolemies, is credited with building the great urban centres of Damascus and Aleppo. 52 For scholars of international law, it is also instructive that an early notion of self-determination could be said to be manifest in the revolt of the Maccabees, re-establishing a Jewish Kingdom in Palestine. 53 However, this and other uprisings were suppressed by the fi rst century bc when the Romans conquered the territory. Th e subsequent 700 years saw consolidation of Roman and subsequently Byzantine infl uence, with Syria becoming an important part of an emerging vast international network. 54 Th e Romans provided strong central rule and, while the country fl ourished in socio-economic terms, the cor- responding impact on minorities and local communities was, as in other parts of the Roman Empire, one of assimilation. Th ere were manifestations of diff erence, not least in the manner in which some towns (e.g. Antioch) maintained distinctly Hellenic traditions, while others (notably Beirut) became centres of Roman cul- ture. Semitic cultures continued to fl ourish, with Arabian trade routes ending in Syria and towns such as Damascus maintaining their Semitic character, tradi- tions, and languages, not least through time-honed great bazaars. 55 Aramaic and Arabic competed to be the commonly spoken language, while the government orchestrated strong rules compelling nomadic tribes to settle down. 56

Religious plurality also fl ourished during this period. Th e mixture of com- munities who in today’s terminology could be said to be of diff erent religious, linguistic, and even ethnic backgrounds, in conjunction with a range of diff erent rulers with vastly diff erent agendas who governed the territory, made Syria ‘fer- tile ground’ in which communitarian policies could fl ourish. Indigenous belief systems were framed on traditional forms of spirituality, including Sun worship, but this was augmented by the impact of Greek philosophy and spirituality dur- ing the Hellenic era as Porphyry and Neo-Platonists began to wield infl uence. 57 Th e persecution of early Christians in urban centres meant that many intellectu- als and monks fl ed to the Syrian Desert and elsewhere in the region, assisted by strong philosophical traditions of Antioch and Edessa. 58 As a result, Orthodox

⁵⁰ Ibid 15. ⁵¹ Ibid 15–16. ⁵² Ibid 16. ⁵³ See U Heyd, Ottoman Documents on Palestine 1552–1615 (Clarendon Press 1960). ⁵⁴ Hourani (n 40)17. ⁵⁵ See M Bakhit, Th e Ottoman Province of Damascus in the Sixteenth Century (Beirut 1982) and

A Rafeq, Th e Province of Damascus: 1723–83 (Beirut 1966). ⁵⁶ Hourani (n 40) 17. ⁵⁷ For an account that may clearly be deemed ‘colonialist’ but nonetheless provides an insight into

this issue see De L O’Leary Arabic Th ought and Its Place in History (Kegan Paul, Trench, Trubner & Co 1922) 10–14.

⁵⁸ Ibid 33–40.

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and other versions of Christianity became popular, among them Chrysostom, Nestorians, Monophysites, and Monothelete. 59 Th ese ideologies became impor- tant unifi ers within clans and their impact is visible in the continued existence of many Christian sects in contemporary Syria. Facing increased persecution dur- ing Roman rule, especially under Titus (70 ad ), Jews in the region became part of a Diaspora. Th is paved the way for Christianity to take a stronger hold in the region. 60 It was at this time that Jewish presence in Syria dropped notably and the prospect of a Jewish autonomous state dropped dramatically from the political agenda. 61

Th e growing prominence of the Sassanid Empire in Persia exerted signifi cant pressure on weakening Byzantine rule by the third century ad . 62 With Syria becoming a key battleground in the Perso-Roman wars, these pressures impacted the overall coherence of the populations within. Th e birth of Islam through Prophet Muhammad generated a new force upon the belief systems of communi- ties and by 633 ad His followers had conquered Syria: the Byzantine forces were defeated and withdrew, and Syria was on its way to becoming part of the Muslim Empire in the Middle East. It is important to note that Islam took root easily in Syria through the wide dissemination of Arabic and the general discontent with the Byzantine government and the offi cial position of the Orthodox Church. While Aramaic continued to persist in Lebanon, the rest of Syria adopted Arabic as its principal language, with conversion to Islam taking place at a slower pace. Hourani highlights that:

Th e establishment of a Moslem Government, and the ties of race existing between the Moslem invaders and settlers and many of the other elements in the population, were inducements to conversion; but neither the conquest nor the early period of Moslem rule was marked by religious persecution, or by proselytization on a large scale, except among the Arab tribes. 63

Commenting on the impact of this immense change in terms of the Christian and Jewish populations of the state, Hourani states:

Christians and Jews, it is true, were regarded as in a sense standing outside the commu- nity; they were not allowed to carry weapons, to bear witness against Moslems in courts of law, or to marry Moslem women; and they were subject to special measures of taxa- tion. But they were permitted to retain their beliefs and their property, to worship as they pleased, and to manage the internal aff airs of their communities according to their own laws and customs. All Christian sects were treated alike; for the heterodox, the Moslem conquest meant a greater toleration than they had previously known. For several centuries Christianity continued to be the faith of a large proportion of the population; in north

⁵⁹ Ibid. ⁶⁰ Ibid. ⁶¹ Hourani (n 40) 18–20. ⁶² Ibid 19–20. ⁶³ Ibid.

1 History 267

Lebanon, in the great towns and elsewhere, large Christian communities have continued to exist until today. 64

During this period the conquerors were themselves conquered by various forces, but the nature and ethos of the state remained Muslim, and Arabic gradually replaced Aramaic as the language of government. Th is is not to suggest com- plete harmony between the followers of the diff erent religions. Divisions existed, tensions based on the origin of the groups, with distinctions visible in the lan- guage between ‘Mawali’—converted Syrians and others. Th ere were intermit- tent confl icts between powerful clans that ruled the countryside. Th ere were also intra-Arab tensions, most notably between the Qaisite and the Yemenite factions, as Islam began to fragment along diff erent interpretations of the teachings of Prophet Muhammad and His successors, especially Muawiya and Ali, leading ultimately to the distinction between Sunni and Shi’a Islam. 65

By the eighth century, signifi cant change was visible as the Ummayads were replaced by the Abbasids, bringing repression of communities in Syria 66 and a general decline in terms of prosperity and infl uence that could be attributed in part to the territory becoming a distant border province of an empire centred around Baghdad. 67 However, it was also under the Abbasids that Arabic, growing in infl uence throughout preceding centuries, fi nally became the most dominant language, and Islam the most signifi cant religion—a fact also attributed to sig- nifi cant immigration from Arabia and government inducements to conversion. 68 Sensing the change in fortunes during this period, many Christians migrated to Mount Lebanon and, by the ninth century, the Maronites established themselves as the dominant group in the Lebanese mountains from where they served as a beacon to attract other Christian communities from Syria.

By the tenth century, the Abbasids’ dynasty was in decline and was replaced by dynasties of Arab and Turkish descent, accompanied by growing prominence for a number of Islamic religious minorities, such as the Alawites. 69 Th e Alawites and Druze, who emerged as a force in the eleventh century after the disappear- ance of the Fatimid Caliph al-Hakim bi-Amr Allah, could be described as not only religious in nature but also as ‘secret societies with political aims’. 70 By the eleventh century, under the patronage of the Fatimid dynasty in Egypt, local dynasties gained infl uence over the southern part of the state while the north came under the sway of the Seljuq Turks. Around this time the region fi rst fell

⁶⁴ Ibid 20. ⁶⁵ Ibid 21. ⁶⁶ Ibid. ⁶⁷ See generally, T El-Hibri, Reinterpreting Islamic Historiography: Harun Al-Rashid and the

Narrative of the Abbasid Caliphate (Cambridge University Press 1999). ⁶⁸ Hourani (n 40) 21. ⁶⁹ Ibid 22. ⁷⁰ Ibid. Th is assertion is perhaps more revealing of Hourani’s own imperialist credentials, which

saw threats to hegemony. It nonetheless provides an early insight into how Syrians may have viewed the community in the latter half of the twentieth century.

Minority Rights in Syria268

under the infl uence of Western crusading armies, with the entire territory being divided and conquered, and a series of vassal states established in places such as Edessa, Antioch, Jerusalem, and Tripoli (modern Lebanon). 71 Th ese states were maintained by Western armies and traders—Christians were encouraged to con- vert to Roman Catholicism with a special agreement entered into between the Maronites and the Catholic Church. 72 Th e crusaders’ hold was threatened and they ultimately succumbed to Saladin, Kurdish in origin, who extended his reign to almost the whole territory, including the Christian Holy Places, provoking the Th ird Crusade by the end of the twelfth century. Th e various stresses and strains during the thirteenth century were exacerbated by Mongols, who swept through the region, ultimately giving rise to the Marmelukes, who gained and maintained control over Syria for the subsequent two centuries. Th is period is characterized by decline as trade routes changed and simmering discontent manifested itself in uprisings (especially Druze and Shi‛a) that were brutally suppressed. As a result, Syria fell easily to the Ottoman Turks when they attacked in 1516. 73

1.2 Th e Ottoman Empire and ‘minority rights’

While Bilad al-Sham came under Ottoman rule in 1516, its control of the region was nominal in some areas, especially in Mount Lebanon where the Druze held sway and where, as a result, the Ottomans had to deal with chronic disobedi- ence and rebellion for nearly a century and a half. 74 While historians have stud- ied several aspects of the Ottoman Empire, there has been little analysis of this Empire by legal scholars. Th e millet system developed under the Ottomans is of particular interest in this volume, as it represents possibly the fi rst manifesta- tion of what could be deemed ‘minority rights law’. In this connection there are two important caveats that need to be noted. First, in contrast to literatures that suggest that the Ottomans devised the millet system, the origins of the system pre-date the Ottoman period. Th at said, it was under Ottoman rule that the millet system was consolidated. Second, in looking at the laws and regulations attendant to this system, there is a diff erence between law as a prescription for the organization of society and the extent to which ‘reality’ and events fi t within this prescription, i.e. the diff erence between the de jure and the de facto . Th us, even though the various edicts and legislations may off er prescriptions for how society ought to function, in reality Ottoman society did not appear to be ruled

⁷¹ J France, Western Warfare in the Age of the Crusades, 1000–1300 (University College London Press 1999) 289–322.

⁷² See generally, P Naaman, Th e Maronites: Th e Origins of an Antiochene Church—A Historical and Geographical Study of the Fifth to the Seventh Centuries (Cisterian Studies, Liturgical Press 2011).

⁷³ Hourani (n 40) 24. ⁷⁴ AR Abu-Husayn, ‘Problems in the Ottoman Administration in Syria During the 16th and 17th

Centuries: Th e Case of the Sanjak of Beirut-Sidon’ (1992) 24 International Journal of Middle Eastern Studies 665–75, 666.

1 History 269

by these prescriptions, with regulations regularly ignored or directly disobeyed. It is diffi cult to read specifi c meaning into this disobedience; it seems more that for many elements of Ottoman society knowledge of the law was not uppermost in how society functioned. Nevertheless, when studying these issues from a legal perspective, there are three germane issues: how the system was confi gured; what elements were central to its erection; and what it was trying to achieve. Th e extent to which its aims were fulfi lled and the extent to which it created an administra- ble system becomes an important factor in seeking to understand its limitations. With these objectives in mind, this section will focus fi rstly on the millet system itself, how it was confi gured and consolidated under the Ottomans. Since the concept has already been introduced in section 1.1 only brief comment will be off ered here on its justifi cation. Th is will be followed by an examination of the extent to which this system functioned, assessing its effi cacy and exploring the idea of whether it could be considered the fi rst ‘minority rights systems’. Section 1.4 examine the transition between the Ottoman and French rule, studying the impact of this transition on the communities in Syria.

While many credit the millet system to the Ottoman Empire, historians suggest it pre-dates this period and was only formalized under the Ottomans through a series of Imperial edicts that recognized formal autonomy for the communities. 75 Th e system is a relic of an age when communities and clans lived by their own customs and laws. Arguably, one of the earliest forms of autonomy that existed within an empire, communities were left to select the strictures within which they could live. Power within the millet was held by an individual who was not democratically elected but was recognized by the Ottomans and later the French, as spokesman for the group. Its manifestations were visible under the Arab and Ottoman periods, during which Christian and Jewish communities were allowed autonomy over the governance of their communities. Th e word ‘ millet ’ is Turkish and probably derives from the Arabic millah , which equates with ‘community’ and represents a group that operates in conjunction with the state. 76 Th e Ottoman government engaged with communities through its representatives rather than individually, with community leaders, often spiritual heads, provided with cer- tain civil and political functions especially in matters concerning personal status such as marriage, divorce, inheritance, and even property rights. Communities were thus able to live by tenets and ideologies of their religious beliefs. Th is is not to suggest that these communities were monolithic nor that they were unanimously supportive of their leader. Rather, the authorities communicated and governed through these leaders, irrespective of the unanimity of their man- date. Th e system succeeded in preserving one of the earliest forms of minority rights in the world by engendering intra-group cohesion, preservation of identity

⁷⁵ Hourani (n 40) 63. ⁷⁶ See generally, MH Van Den Boogert, Th e Capitulations and the Ottoman Legal System (Brill

2005).

Minority Rights in Syria270

and a sense of community. Tight intra-community bonds and inter-community tension resulted in antagonisms and suspicion between competing millets .

Th e millet system derives from the Qur’an (especially verse 49:3) requiring Muslim communities to off er protection to People of the Book to reside in Muslim lands. In articulating this, Hashemi draws on Fatemi to identify the underlying justifi cation for the system as consisting of:

. . . [T]he permission given to Ahlil-Kitab [People of the Book] including to reside in Darul-Islam, [territory of Islam], provided that they respect Islamic rules. Darul-Islam, indeed, by accepting them in the light of such an agreement, grants to them the Muslims’ protection, in return for the payment of Jizya. In fact by this agreement they will be rec- ognized as legitimate religious minorities who are granted the protection of Darul-Islam which is guaranteed to Muslims in matters of peace and security. 77

Th e administrative emergence of the dhimmi and customary local self-rule for communities that were traditionally insular and lived in some geographical isola- tion gradually gave rise to a concerted system under the Ottomans, 78 described as ‘the bureaucratization of the confessional religious strictures in the Ottoman State’. Th us:

All the Orthodox Christians, comprising those of Greek rites, were placed under the authority of the Patriarch in Istanbul. He was elected by the Synod and approved by the Sultan, although the latter’s approval was a mere formality. Th e Eastern Christians were under the formal jurisdiction of the Armenian Patriarch in Istanbul. Although there were other Greek and Armenian patriarchs, the two in Istanbul acquired supremacy because of their affi liation with the government and residence in the capital. 79

In addition to the two millets identifi ed above, a separate Jewish millet was established, giving rise to a system that comprised three classical millets , namely, Orthodox, Armenian, and Jewish. 80 A point made earlier is worth bearing in mind here. While the millet systems were organized as described above, the heterogeneity of the groups, the diff erences of opinions within, and the sheer geographic distance between communities and their chief religious personage often meant that the relationship between the millet and its leaders was strained. For instance, Jewish communities scattered throughout the Empire did not always adhere to or respect the religious and temporal authority of the Chief Rabbi based in Constantinople (Istanbul). Th us, it is important to highlight the gap between the millet (e.g. the Jewish millet with its Chief Rabbi based

⁷⁷ Hashemi (n 13) 14 quoting SMG Seyed Fatemi, ‘Nationality or Citizenship? A Normative Appraisal of International Law, Shiei Fiqh and the Iranian Legal System’, Collected Papers of the International Conference on Human Rights and Dialogue of Civilization (Mofi d University Publication Institute, Qom Iran, 2001) 261.

⁷⁸ KH Karpat, Studies on Ottoman Social and Political History: Selected Articles and Essays (Brill 2002) 718.

⁷⁹ Ibid 719. ⁸⁰ Ibid 725.

1 History 271

in Constantinople) and the communities (e.g. the Jewish communities in Beirut, Damascus, and Aleppo).

Gocek states that the Ottomans began making distinctions between commu- nities as early as the fi fteenth century, as they sought to construct the social struc- ture of the Empire. 81 Th is process necessitated the organization of communities around their own patriarchates and rabbinates as alluded to above, granting them freedom and autonomy in terms of their personal status. 82 However, their pro- hibition from public service also contributed to the bifurcation of society. 83 Th is fuelled the transformation of the communities from religious to ethnic groups, and was accomplished by two further factors: the reproduction of existing Ottoman structural and cultural divisions, and increasing Ottoman contact with the West. 84 Gocek clearly articulates how the distinctions made gained salience:

Th e Ottoman demarcation of religious communities, which was based on Islamic prin- ciples, translated into social practice as these communities endured and reproduced themselves within Ottoman society. In the process of reproduction, the members of each community acquired a cognitive sense of their diff erence in relation to the other commu- nities and to the Muslims (thus perceiving themselves, and being perceived, as a minor- ity group). Th is cognitive self-recognition intersected with certain cultural, historical, and linguistic elements as the Ottoman state formulated rules and restrictions pertaining to these religious communities, thus providing religious communities with the properties of an ethnic group. 85

Th e diff erentiation was achieved by a range of factors, with law playing an impor- tant prescriptive role even if not always adhered to in practice. Th us, strictures governed a range of operations including what constituted acceptable clothing, headgear, and footwear. 86 Additionally, while everyone had the same land use, this was accessed on the basis of intra-group identity, and inheritance was prevented in both directions between Muslims and non-Muslims. Similar prohibitions applied in family law, though while a non-Muslim man was prohibited from marrying Muslim women, a Muslim man was allowed to marry non-Muslim women. As indicated earlier, non-Muslims paid a special poll tax ( jizya ) for the right to live as non-Muslims among Muslims, 87 though they needed to pay only half the mon- etary compensation payable by Muslims in cases concerning adultery, assault, or murder. Th e rationale for this discounted fi ne was that moral standards among the minorities were assumed to be lower than those expected of a Muslim.

⁸¹ FM Gocek, ‘Ethnic Segregation, Western Education and Political Outcomes: Nineteenth Century Ottoman Society’ (1993) 14(3) Poetics Today 507–38, 515.

⁸² For more on this issue see, AR Abu-Husayn, Provincial Leaderships in Syria: 1575–1650 (Beirut 1985).

⁸³ EZ Karal, ‘Non-Muslim Representatives in the First Constitutional Assembly, 1876–77’ in Braude and Lewis (eds) (n 7) 387–400, 387.

⁸⁴ Gocek (n 81) 514. ⁸⁵ Ibid 515. ⁸⁶ Th ere is irony here in that the French state today seems to be mirroring Ottoman practices. ⁸⁷ Th ere is irony here with British proposals to make non-citizens pay more tax.

Minority Rights in Syria272

In characterizing the ‘classical Ottoman state, as it emerged in the fi fteenth century’, Karpat suggests that:

[it] was composed basically of a ruling Muslim elite identifi ed with the state and the dynasty. Th e elite were recruited originally from various ethnic groups, Muslim and (espe- cially) non-Muslim, until the end of the sixteenth century. Th e non-Muslims opted for government service through converting to Islam. Th ough many members of the converted elite preserved personal ethnic ties to their original groups, including the continued use of their native languages, this situation did not create a confl ict of allegiance between their ethnic identity and political allegiance . . . However, unlike the elites, the masses adhered strongly to their ethnic identities regardless of conversion. 88

When turning to the question of ethnicity and its overlap with religious identity during the Ottoman era, Karpat suggests that Muslims were relatively unaff ected by questions of ethnic consciousness in the early Ottoman period, mainly since their membership of the umma superseded questions of ethnic affi liation. 89

Some literatures suggest that the Ottomans made scrupulous eff orts to keep communities separate, though this is disputed among Ottoman scholars and his- torians. 90 For instance Barkey’s account of the millet system suggests that divisions between communities were often reconstructed and policed by vested interests, rather than maintained through an internal siege mentality. 91 Irrespective of this it is clear from legal strictures that restrictions governed the location and types of dwellings that minorities could inhabit, ensuring that their residences were lower and of inferior material to that constructed for Muslims. 92 Gocek sug- gests that interactions were restricted to the economic and professional realm, and that for minorities in particular, relations were restricted to those within their groups, or, in later years, to those with their Western co-religionists. 93 She

⁸⁸ Karpat (n 78) 717. ⁸⁹ Th is would change after the establishment of Turkey between 1919 and 1923, and came to a

head during European intrusion, as we shall see below. See, Karpat (n 78) 729. ⁹⁰ Gocek (n 81), who argues that there were strong segregationist tendencies in society as opposed

to N Fuccaro, ‘Ethnicity and the City: Th e Kurdish Quarter of Damascus between Ottoman and French Rule c.1724–1946’ (2003) 30(2) Urban History 206–24, who suggests considerable intermix- ing. Part of the reason for this discrepancy can be attributed to the fact that each is commenting on a diff erent geographic part of the Ottoman Empire, and also that the considerations driving each work diff ered. Th us, while Gocek focussed on religious diff erences, Fuccaro focusses on linguistic diff erences. A key text that has infl uenced the view against millets as segregated entities was the edited collection Christians and Jews in the Ottoman Empire: Th e Functioning of a Plural Society by B Braude and B Lewis (eds) cited above n 7, which fi rst portrayed the millet system as a process through which diversity was managed within the Empire. Special thanks to Benjamin White for drawing this work to our attention.

⁹¹ See K Barkey, Bandits and Bureaucrats: Th e Ottoman Route to State Centralization (Cornell University Press 1994) 55–84. Also see K Karpat, ‘Millets and Nationality: Th e Roots of the Incongruity of Nation and State in the Post-Ottoman Era’ in Braude and Lewis (eds) (n 7) 141–69.

⁹² Gocek (n 81) 515. Th ere is further evidence of this system in G Baer, ‘Monopolies and Restrictive Practices of Turkish Guilds’ (1970) 13(2) Journal of the Economic and Social History of the Orient 145–65.

⁹³ Ibid.

1 History 273

also distinguishes Ottoman socio-economic policy from their approach to social integration. Th us:

Th e Ottoman Muslims shared most of their economic opportunities with the minorities—all social groups, to varying degrees, participated in the empire’s economic sphere, and through this participation, Ottoman state authority was able to penetrate the broad range of social groups in the empire. Th e long duration of Ottoman rule (over six centuries) can be explained partly as a consequence of this economic inclusion policy. But it was the Ottoman social-exclusion policy that started to destroy the social fabric of the empire in the eighteenth and nineteenth centuries. When the Ottoman Muslims attempted to incorporate the minorities into the empire through Westernizing political and social reforms in the nineteenth century, they failed because of this policy of social exclusion. Instead, social inequalities and segmentation escalated within Ottoman society as diff erent groups became Westernized at diff erent rates—and for diff erent political ends. 94

Against this backdrop, ‘Muslims’, ‘Christians’, and ‘Jews’ were not internally coherent groups. Th us, only a small proportion of ‘Muslims’ had access to per- sonal enhancement through high offi ces of the state. Th e vast majority were agrarian communities with little or no access to such political advancement. As in many societies today, there is credence to the argument that positions of power and infl uence within the state machinery were often more accessible to those who were urbanized, irrespective of their religious identity.

While the millet system provided signifi cant autonomy to communities it is important to iterate that this did not mean that inter-group violence did not exist. Th ere are three particular historical junctures that highlight existing ten- sions between communities: the blood-libel accusations against the Damascene Jewish community in 1840; 95 the massacre of Christians in Aleppo in 1850; 96 and the burning, looting, and massacre of Christians in Damascus in 1860. 97 However, as Al-Qattan highlights, the attacks were surprising as the communi- ties targeted were relatively insignifi cant in terms of Syrian politics (in contrast to more powerful minorities in the Empire such as Maronites in Mount Lebanon or Armenians in Istanbul). 98 Al-Qattan is generally wary of the extent to which

⁹⁴ Ibid 516–17. ⁹⁵ For more on this and related anti-Semitism during this period, see AM Hyamson, ‘Th e

Damascus Aff air—1840’(1945–1951) 16 Transactions: Jewish Historical Society of England . Also see J Frankel, Th e Damascus Aff air: ‘Ritual Murder,’ Politics, and the Jews in 1840 (Cambridge University Press 1997) and, more generally, M Ma’oz, ‘Changes in the Position of the Jewish Communities of Palestine and Syria in the mid-Nineteenth Century’ in M Moshe (ed), Studies on Palestine During the Ottoman Period (Th e Magnes Press 1975). Th is libel emerged from the Christian community in Damascus rather than the Muslim ‘majority’, with evidence to suggest that this was derived from anti-Semitic European consuls.

⁹⁶ B Masters, ‘Th e 1850 Events in Aleppo: An Aftershock of Syria’s Incorporation into the Capitalist World System’ (1990) 22 International Journal of Middle East Studies 3–20.

⁹⁷ For more on the Christian massacre in Damascus in 1860, see N Al-Qattan, ‘Litigants and Neighbors: Th e Communal Topography of Ottoman Damascus’ (2002) Society for Comparative Study of Society and History 511–33.

⁹⁸ Ibid.

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events and the issue of dhimmi– Muslim relations is covered by many historians. She argues:

Th e focus on dhimmi violation . . . appears to be rooted in the twin methodological assump- tions of communal insularity and Muslim rapacity. Th e two assumptions are . . . ideologi- cally correlated and designate unique and persecuted communities—the sine qua non of minorities. On the one hand, individual dhimmi communities are assumed to be self-contained—perhaps, primordial—continuities, on account of which they constitute viable units of trans-historical analysis. On the other hand, they are also depicted as sub- ject to religious abuse at the hands of the Muslim state, Muslim law ( Sharia ), and Muslim neighbours. While Islam is elevated as a destructive historic force that frames and poisons Muslim/ dhimmi relations, the everyday life of Jews and Christians is pictured as if in mat- erial isolation, a view that ignores that larger social forces and a shared daily existence also connected dhimmi men and women to their Muslim counterparts who were, one assumes, more preoccupied with the business of making a living than of being a mob. 99

Al-Qattan highlights methodological diffi culties encountered by social histor- ians accustomed to studying the everyday relations between communities in Damascus, which had a degree of dhimmi –Muslim accommodation and toler- ance, in having to account for the ferociousness of the events of 1860. While suggesting that the events in 1860 were an anomaly that springs up from time to time in inter-ethnic relations in Syria, she acknowledges that a rise in sectarian- ism can be directly attributed to the Tanzimat Reforms, which had the eff ect of decentralizing economic power and benefi tting communities that had connec- tions to Europe (such as Jews and Christians) at the cost of the majority Muslim population. 100

Based on an empirical analysis of one hundred registers of the Sharî’ah courts, frequented by Christians and Jews as well as Muslims, al-Qattan presents a snapshot of everyday life in Damascus that highlights the complexity of inter-communal relations and challenges the notion of inter-communal tensions:

. . . Muslim/ dhimmi coexistence was evident in everyday life, and not only in the stalls of the marketplace and the alleyways of the old city, where economic and spatial interaction were inevitable. In Ottoman Damascus, Muslims and dhimmi s shared the legal and resi- dential spheres of their lives as well: in court and around residential courtyards, Muslims and dhimmi s constructed closely intertwined and orderly lives. However, it is also in those very arenas that Muslim/ dhimmi coexistence manifests complex and as yet unexplored patterns of religious diff erentiation. It is in fact those patterns that invite us more fully to appreciate the centrality of religious distinctions in pre-modern Damascene society. 101

Th e author’s assessment of the courts in Damascus during the eighteenth and nineteenth century suggests that these institutions were a meta-arena of the inter- action between Muslims and the dhimmi . In terms of explaining why dhimmi

⁹⁹ Ibid 512. ¹⁰⁰ Ibid 513. ¹⁰¹ Ibid.

1 History 275

communities accessed Sharî’ah courts, the author off ers three explanatory factors:

(1) the exclusive jurisdiction of the courts that covered issues of capital crime, public order, and inter-communal litigation;

(2) the court operated as a public registry, thereby requiring all citizens to engage with it administratively;

(3) engagement by dhimmi communities on issues supposedly within their autonomous realm including questions concerning marriage, divorce, inheritance, and child custody. 102

It is a source of some intrigue that the dhimmis ’ approach to the courts was met with an assessment of the facts of the cases presented against Sharî’ah law. Th us, rather than applying the relevant principles of law on the basis of the millet con- cerned, the courts would simply determine the case on the basis of Sharî’ah law, with this not acting as a signifi cant deterrent to future cases. 103 As al-Qattan’s study reveals: ‘ dhimmi s and Muslims brought their disputes to Muslim qadis who examined the evidence, interrogated witnesses, and passed sentences that appear to have disregarded the religious affi liation of the parties, often going so far as to allow dhimmi testimony to challenge its Muslim counterpart’. 104

Rather than viewing this phenomenon as dispensing with the dhimmi system, al-Qattan suggests it was common practice in many urban centres across the Empire where court dockets were replete with instances of this kind, ostensibly either on the basis that there were no signifi cant distinctions in the justice to be had under the diff erent religious laws, or that the religious laws themselves mattered less than an instant settlement to the dispute at hand. Th is latter factor was clearly exacerbated by the lack of other judicial settlement avenues open to dhimmis . It is signifi cant nonetheless that the evidence indicates that the courts were ‘blind to religious affi liation and treated Christians and Jewish men and women who sought it in ways identical to the ways in which it treated Muslims’. 105 Th is asser- tion is also supported by others, who suggest that minorities felt a degree of com- fort living under Muslim law, 106 leading one to state that: ‘with regard to religious tolerance Islam seems to have a better historical record than Christianity’. 107

Having examined a number of disputes concerning property that involved a wide range of Damascenes, al-Qattan concludes that: It is evident that the Jews, Christians, and Muslims of Damascus did not lead lives of social isolation . . . legal accommodation and residential coexistence were everyday realities.

¹⁰² Ibid. ¹⁰³ Ibid. ¹⁰⁴ Ibid 515. ¹⁰⁵ Ibid 516. Against this the author does suggest that there were clear distinctions made between

Muslim and non-Muslim cases in terms of issues such as the use of names and terms. ¹⁰⁶ Hashemi (n 13) 24. ¹⁰⁷ H Bielefeldt, ‘Muslim Voice in the Human Rights Debate’ (1995) 17(4) Human Rights Quarterly

597–8.

Minority Rights in Syria276

In the courthouse as well as in the courtyard the imposing demands of material life forced the negotiation of legal imperatives as well as residential arrangements in ways that at some level suspended—or at least diluted—the primacy of religious affi liation. Th e dhimmi and Muslim inhabitants of Damascus shared a unity of social space (fi gurative as well as real) that was also expressed in the commonality of the Muslim court and of the legal space it made available. . . . Th is is not intended to reiterate the obvious, nor to celebrate the happy coincidences of archival research, but to point out that dhimmi life was both integrated in, and organized by, its larger Muslim context. 108

Syria remained under the Ottoman Empire for three centuries, a period that ended in territorial adjustments at the end of World War I. Th e comparatively loose governance structures within the Empire meant that the cultures of Syria remained relatively intact; for instance, the sway of Arabic remained and migra- tion to Syria from the Arabian Peninsula continued. Th e state itself was divided into Pashaliks: Damascus, Aleppo, Acre, Tripoli, and Saida, but the writ of the Pasha was largely constricted to urban centres and did not spread to the country- side. Local powerbrokers organized by clan held sway outside the urban centres, maintaining order, and collecting taxes. Th ere were periods of relative calm inter- spersed by ruthless suppression, such as under the auspices of the Pasha of Acre, Jazzar (1775–1804). During this period Europeans, some of whom had settled in Syria during the Crusades, continued to trade and established colonies of mer- chants in Syrian towns such as Aleppo. Th ey gained concessions, ‘capitulations’, from the Sultan to be governed in accordance with their own law. 109

1.3 Ottoman eff orts to create unitary citizenship

Externally Syria had already attracted the interests of Napoleon, who had con- quered Egypt. He attacked and made strong progress down the coast but was halted in 1799 through British assistance to Jazzar the Pasha of Acre. 110 By 1832 Syria was occupied by Muhammad Ali of Egypt, with nominal acceptance of this by the Ottoman Sultan. Ali brought strong governance and centralized administration, reformed the judiciary and sought to create a platform of equal- ity between the Muslim and Christian communities. Th e regime oversaw the building of schools and the normalization of public life, with the result that the decline of society was arrested. Ali governed at fi rst through tacit power-sharing agreements that respected the power of the ruling landowners. However, this support weakened as landowners, accustomed to controlling their domain, began to see his idea of a centralized governance system as a threat to their political domination. His support for landowners meant that the peasants were less likely

¹⁰⁸ Al-Qattan (n 97) 523. ¹⁰⁹ Th is model has signifi cant lineage, see DJ Bederman, International Law in Antiquity (Cambridge

University Press 2001) 137–206. For the context in the Ottoman Empire, see Van Den Boogert (n 76). ¹¹⁰ Hourani (n 40) 28.

1 History 277

to support him—also the imposition of forced labour, conscription, and heavy taxation fuelled resentment. 111 In addition, the Sultan, wary of the extent to which Ali had usurped power, began to agitate to restrict his rule, supported by the British and Russians, who were keen to maintain relations with the Sultan and saw Ali as closely allied to the French. By 1839, Ali was forced to abdicate Acre and power returned to the Ottoman Sultan. Eff orts continued to modern- ize the state, initiated by Sultan Mahmud II and his successor Abdul-Majid. 112 During this period four crucial pieces of legislation were passed that sought to introduce the concept of unitary Ottoman citizenship; a process resisted by some millets, notably the Christians, out of fear of the undermining of their autonomy. Th ese were:

(1) the Gulhane Decree 1839 —guaranteeing security, creating public trial sys- tems, and providing for equality of rights between the members of the dif- ferent religious communities; 113

(2) the enactment of the Penal Code 1840 —based on the rule of law and equal- ity under the law; 114

(3) the Hatti Humayun Edict, 1856 —defi ning and guaranteeing spiritual and temporal privileges of non-Muslim communities, while ensuring parity with Muslims in terms of rights; 115 and

(4) the issuance of a Parliamentary Constitution, 1876 . 116

It is worth noting that the Hatti Humayun in particular was instigated at the end of the Crimean War, where control for the Holy Places in Palestine was a key contentious issue. 117 To engender their own national interests, especially France’s historical link with the Christians in the region, European powers compelled the Sultan to pass this act. Th e four edicts together were clearly focussed on seeking to create unitary Ottoman citizenship, though the literature seems to emphasize its quest to generate equality between non-Muslims and Muslims. As one author states:

Th e Ottoman imperial decrees of 1839 and 1856 attempted to make all subjects, regard- less of religious or ethnic affi liation, equal before the law. Th e Ottoman state assiduously applied these decrees to incorporate minorities into the government service and the educa-

¹¹¹ Ibid. ¹¹² Ibid 30. ¹¹³ As reprinted in JC Hurewitz, Th e Middle East and North Africa in World Politics: A Documentary

Record , vol 1 (2nd edn, New Haven 1975) 270. Also see B Braude, ‘Foundation Myths of the Millet System’ in Braude and Lewis (eds) (n 7) 69–88, 73. ¹¹⁴ For more on the background to this enactment, see B Lewis, Th e Emergence of Modern Turkey

(Oxford University Press 1961) 107. ¹¹⁵ As reprinted in Hurewitz (n 113) 317. ¹¹⁶ As published in Levant Herald (27 October 1876); BBA, Yıldıztasnifi , Kısım 18, evrak 525/570;

Haus Hof-und Staatsarchiv (Vienna), Politisches Archiv XII/88 (22 August 1867); Public Record Offi ce (London), Foreign Offi ce 78/2390, Elliott (Constantinople) to Derby, no 745 (12 November 1875). ¹¹⁷ Hourani (n 40) 30.

Minority Rights in Syria278

tional system. Yet such measures could not arrest the structural polarization of the Muslim and non-Muslim communities. 118

Events immediately following their publication suggest that these decrees received little traction in generating unitary citizenship. Th ey met strong resist- ance from millets , who perceived them as interfering in their autonomy. 119 Th e growing infl uence of European powers, each harbouring territorial ambitions in the region and cognizant of how a divided and fragmented society would assist their ambition, meant that the project for unitary citizenship was bound to fail. Opposition to the decrees also emanated from non-minority sources: Gocek translates a statement from Ottoman statesman, Ahmed Cevdet Pasa, to the eff ect that the arrival of equality between minorities and Muslims was diffi cult for Muslims, who felt that they had lost sacred rights. 120 Th is resulted in an esca- lation in tensions between communities, further separating them. Th is division has been attributed to both structural and cultural factors. Th e schooling system created structural barriers that were diffi cult to overcome; Muslims were edu- cated in state schools while minorities benefi tted from Western-style schools that had begun to become prominent. In cultural terms, while Muslims were trying to incorporate Enlightenment ideas into state reformation, minorities were seeking to transform their communal systems into political projects. 121

In commenting on the four decrees listed above, Hourani stresses that they were passed with one eye on impressing Western governments and another on establishing a more centralized and uniform system to combat landowners’ power in the countryside. Th e eff orts were accompanied by a process of creating a pro- fessional armed force that maintained loyalty to the Sultan. Th e results of the experiment were mixed; it was successful,

. . . with the Kurds and Turcoman in the north and the Alawis around Latakia; unsuccessful in others, for example with the Druze of Jebel Druze, who, in spite of expeditions against them in 1876, 1896 and 1911, and of occasional acts of submission on their part, retained their administrative and judicial autonomy and their exemption from military service. 122

Th e Sultan also used the opportunity to reorganize the country into vilayets (ini- tially Damascus and Aleppo, with Beirut created subsequently). Jerusalem was given special autonomous status of a sanjaq while Dairaz-Zur was established as a mutassarifate , and both were attached directly to the central government in Constantinople. 123 Th e changes were instrumental in rectifying the period of decay and decline of the previous few decades. Despite the prosperity that fl owed to Syria under the rule of Sultan Mahmud II, for minorities his regime was

¹¹⁸ Al-Qattan (n 97) 517. ¹¹⁹ Ibid. ¹²⁰ Ibid. ¹²¹ Ibid 518. ¹²² Hourani (n 40) 31. ¹²³ Ibid.

1 History 279

one of tyranny and suppression. 124 Th is policy continued through the reign of Abdul-Majid with strong police measures and signifi cant censorship aff ecting the freedom of association, which signifi cantly impacted the ability for commu- nities to mobilize and interact. 125 Th is needs to be viewed in a general context which accepts that the rule of law as we understand it today was not functioning eff ectively in Syria. Th us, towards the end of the nineteenth and the dawn of the twentieth century, the rule of law situation in Syria could be described as consist- ing of the writ of the Pashas and the Ottoman administration mainly in towns, with the countryside loosely governed by local powerbrokers, subject to regular Bedouin raids. Mobilizing against these raids created signifi cant internal cohe- sion in villages and strengthened the hand of the local overlords.

By the late 1800s, under the reign of Abdülhamid II (1878–1909), this period of sustained repression against the general public led to two streams of organ- ized opposition. Th e fi rst, seeking to restrict the sweeping powers of the Sultan, is commonly referred to as the movement of the ‘Young Turks’ and was organ- ized as the ‘Committee of Union and Progress’ (CUP); and the second, a move- ment closer to the grassroots that subsequently came to be recognised as Arab nationalism, agitated for Arab self-rule and governance. 126 Th e two movements were radically diff erent in their outlook. Th e CUP ideology was motivated by a desire to centralize authority and enhance imperial bureaucracy. By contrast the second group was motivated by a desire to overthrow imperial rule in the name of Arab nationalism. 127 Th e Young Turks managed to overthrow Abdülhamid II by 1908 but were in no way sympathetic to the call for Arab nationalism. 128 Th e nationalist movement endured mainly through secret societies across the region in Syria and beyond, and it became increasingly active as it became clear that the Ottoman Empire was beginning to disintegrate. 129

1.4 French infl uence on identity politics

Th e commencement of World War I and the weakening of the Ottoman Empire saw the great game for the Middle East recommenced in earnest. 130 British and French interests, in direct opposition for a long time, and contained within the

¹²⁴ Ibid 38. ¹²⁵ Ibid. ¹²⁶ Ibid 39. ¹²⁷ Hourani defi nes Arab nationalism as ‘still an unformed movement and has not yet decided its

attitude towards the West. Th ere are two paths which it can follow, which may be called those of “excommunication” from and of “communion” with the West’, Hourani (n 40) 1. ¹²⁸ See G Antonius, Th e Arab Awakening (Simon Publications 1938). Antonius’s own motivations

have since been brought into question, casting a shadow over his writings. See SS Boyle, Betrayal of Palestine: Th e Story of George Antonius (Westview Press 2001). ¹²⁹ See generally, H Kayali, Arabs and Young Turks: Ottomanism, Arabism, and Islamism in the

Ottoman Empire, 1908–1918 (University of California Press 1997). ¹³⁰ See generally R Fisk, Th e Great War for Civilisation: Th e Conquest of the Middle East (Vintage

Books 2007).

Minority Rights in Syria280

suzerainty of the Ottoman Empire, were forced into the open. Th e communi- ties within Syria had allies: the Christians allied with the French; many Muslim communities allied to Britain. Alongside these forces was a movement seeking autonomy for the Christians that occupied the vilayet of Lebanon. 131 France had the greatest interests in both Syria and Lebanon with signifi cant investments and an educational system based on the French model. By contrast British interests lay further south around the port of Haifa and the oilfi elds around the vilayets of Basra and Mosul. A third force that began exerting a general infl uence over the region was the Zionists, whose aspiration for an independent Jewish home- land began to mature as they realized their future in Europe’s growing climate of anti-Semitism was uncertain. Th ey turned to Britain to help them achieve their aspiration and return Jews to the region. With Turkey’s entry and defeat in World War I, the stage was then set for Britain and France to realize their Middle- Eastern ambitions and for the Zionist movement and the pan-Arabian national- ists to begin negotiations to realize their own ambitions. Historical records note an interesting exchange in 1915, between Sir Henry McMahon (British High Commissioner for Egypt) and Sharif Hussein; ostensibly negotiating on behalf of secret nationalist societies. Th ese exchanges were a precursor to the continuing challenges attendant to lack of transparency and the diffi culties in determining a spokesperson who speaks for all within a diverse community. 132 With the French subsequently entering these discussions a ‘solution’ was ultimately manufactured that has come to be referred to as the Sykes–Picot Agreement, concluded by Sir Mark Sykes, on behalf of Great Britain, and M Georges Picot, on behalf of France. Th e Agreement, initially secret, was concluded on the 16 May 1916 and sought to ‘legitimate’ existing spheres of infl uence in the Middle East among the European powers though the Russian, Greek, and Italian infl uence was consid- erably less than that of the British and French. 133 Th e earlier negotiations con- ducted by the British with Sharif Hussein, on behalf of Arab nationalists, and Th eodor Herzl, founder of organized Zionism, were ignored. 134

Th e signifi cant machinations and negotiations, especially the subsequent Balfour Declaration , left the nationalists out of the political loop, and they orches- trated a campaign seeking autonomy and self-rule. Th e discussions were signifi - cant enough for President Wilson to address these issues, albeit in general terms, in his Fourteen-Point Address in 1918, promising autonomy for the remnants of

¹³¹ See Chapter 6, Introduction. ¹³² Hourani (n 40) 43–4. ¹³³ For more, see DK Fieldhouse, Western Imperialism in the Middle East 1914–1958 (Oxford

University Press 2006) 36–68. ¹³⁴ Of course, in the context of the latter, the discussion was re-invoked through a letter from Mr

Balfour, then Foreign secretary, to Lord Rothschild, on 2 November 1917 (subsequently recognized as ‘the Balfour Agreement’), which set out the British decision to help facilitate the creation of a Jewish homeland in Palestine.

1 History 281

the Ottoman Empire. 135 Also, with the encouragement of the British, who were keen to consolidate their power base, Syrians played a signifi cant role in the Arab overthrow of the Turkish government, with the active support of some of the most signifi cant Bedouin tribes in the Syrian desert. 136 While Syria was described as a battleground for this war of succession, deliberate and targeted Turkish poli- cies over food distribution and reprisals for Syrian support of the Allies is esti- mated to have resulted in 300,000 deaths in Syria during the war. 137 Reprisals accounted for a small number of deaths, with signifi cantly greater numbers lost to starvation and the spread of disease. Th ere are confl icting accounts concern- ing the extent to which food was withheld, as conditions of famine spread across Syria. While authors like Antonius attribute these to deliberate Turkish policies, other nuanced accounts point to a number of contributing factors including the large-scale conscription of the agricultural labour force, and the requisitioning of grain for the war eff ort. 138 As Ottoman forces became beleaguered and ports came under Allied blockades, conditions of famine became exacerbated. At the end of the war, Syria was occupied predominantly by British troops. Th e French occupied the coastal areas, which would later become Lebanon. Th e Syrian prov- inces around Aleppo, Damascus, Homs, and Hama, along with signifi cant parts of the Transjordan, came under the Arab rule of King Amir Faysal, the ruler of Iraq, supported by a small number of British and French offi cers, and signifi cant numbers of Syrian bureaucrats drawn from the dishevelled Ottoman Empire. 139

A new confl ict became immediately apparent as the French were unwilling to contemplate an Arab state within ‘their’ zone of infl uence, and they had no inten- tion of respecting promises that may have been made between the British and Sharif. In this they were signifi cantly swayed by Lebanese Christians, who were concerned at being submerged in a Muslim state. Th e French alliance formed with the Maronites over centuries clashed with the opposition they faced from Muslims aligned with the British. Th e Sykes–Picot Agreement put paid to any previous discussions, and the British were unwilling to engage in confl ict with the French over the issue. 140

Th e fi rst sign of a ‘solution’ came at the Versailles Peace Conference under the auspices of the League of Nations in January 1919, when King Faysal stressed the need for Arab independence while conceding the right for Lebanon to become an independent entity. 141 By 20 March 1920, on the eve of the San Remo

¹³⁵ For more on this address, see, TA Bailey, Wilson and the Peacemakers: Combining Woodrow Wilson and the Lost Peace and Woodrow Wilson and the Great Betrayal (Macmillan 1947). Th e 14 points are reprinted at 333–4. ¹³⁶ Hourani (n 40) 48. ¹³⁷ Antonius (n 128) 241. ¹³⁸ See S Mardin, ‘Th e Ottoman Empire’ in K Barkey and M Von Hagen (eds), After Empire:

Multiethnic Societies and Nation-Building Th e Soviet Union and the Russian, Ottoman, and Habsburg Empires (Westview Press 1997) 115–28. ¹³⁹ Hourani (n 40) 49–50. ¹⁴⁰ Ibid 50. ¹⁴¹ Ibid 51.

Minority Rights in Syria282

Conference, delegates amassed in Damascus and off ered the Crown of Syria and Palestine to Faysal, who accepted it. 142 But at San Remo the British and French decided to divide Syria between themselves; a decision not respected by King Faysal, who refused to attend and considered the decision invalid. Ultimately the issue was resolved by armed force, with the French marching on Damascus and Faysal forced to fl ee to Baghdad. Th is allowed the Allies the opportunity to divide the region, and with the formal approval of the Council of the League of Nations in July 1922 (eff ective from September 1923), the territory was divided into the Mandates for Syria and Lebanon (consisting the northern half ), a mandate for Palestine (southern half ), with another for Iraq, which was carved out separately. 143 Th e San Remo Conference was also signifi cant for a number of other issues ger- mane to the region: (a) the relinquishment of French interests over the Holy places; (b) the division of oil interests in Iraq; and (c) offi cial French recognition for Mosul as part of the British protectorate 144 (formerly under French sphere of infl uence according to Sykes–Picot). 145 Th is concluded a series of agreements that sealed the subsequent geographical dimensions of the states in the region, a process that began with a series of British–French agreements in 1920–1922, and that defi ned the boundaries of Iraq, Palestine, Syria, and Transjordan. Th e north- ern border with Turkey was resolved through the Franklin-Bouillon Agreement of 20 October 1921 between France and Turkey, 146 subsequently extinguishing Turkish rights to Syria through the Treaty of Lausanne in 1923. 147 Th ese territorial demarcations were, ‘in some ways arbitrary. Th ere was no good reason, economic or ethnic, for the inclusion of the Hulah district in Palestine; for the separation of the Hauran and Jebel Druze from northern Palestine and Transjordan; or for the separation of the Jazirah into Iraqi and Syrian sections.’ 148

Th e agreements with Turkey also left signifi cantly mixed populations of Kurds, Turks, and Arabs on the frontiers of the two states. After a number of debates and conferences in the midst of ensuing tension, the issue was fi nally considered settled by 1930, with the Treaty of Lausanne standing as valid. 149 Th e longer-term impact of these decisions can be seen in the maze of identities that intersect the entire region, as highlighted in Chapters 2 and 3. It seems clear that France saw its role in Syria as tutor to native populations it deemed not yet mature for

¹⁴² Ibid 53. ¹⁴³ For more on this decision, see D Fromkin, A Peace to End all Peace: Th e Fall of the Ottoman

Empire and the Creation of the Modern Middle East (Henry Holt & Co 1989). ¹⁴⁴ See discussion of this in Chapter 4, section 3.1. ¹⁴⁵ See D Eldar, ‘France in Syria: Th e Abolition of the Sharifi an Government, April–July 1920’

(1993) 29(3) Middle Eastern Studies 487–503. ¹⁴⁶ For an English translation of this treaty, see HMSO, Parliamentary Papers , (1921) Cmd 1556. ¹⁴⁷ Hourani (n 40) 57. ¹⁴⁸ Ibid 56. ¹⁴⁹ Th e Treaty of Lausanne 1923 is available at Encyclopaedia Britannica Online : <http://www.bri-

tannica.com/EBchecked/topic/332502/Treaty-of-Lausanne> accessed 14 December 2011.

http://www.britannica.com/EBchecked/topic/332502/Treaty-of-Lausanne

1 History 283

self-governance. 150 As a result it set about installing a series of local governments based on the old Ottoman provincial idea that incorporated the millet system, but enforced centralized rule to a greater extent than before. Th e entire mandate was divided into four (one forming Greater Lebanon), with three provinces sub- sequently becoming: the state of Syria (including the semi-autonomous Sanjaq of Alexandretta); 151 the state of the Alawis, subsequently known as Latakia; and the state of the Jebel Druze. Th e latter two provinces were eventually absorbed into Syria by 1942. 152 It is instructive to note that the decision to grant autonomy to the Druze and Alawis was in line with a specifi c French policy of divide and rule. Th is autonomy was achieved through exacerbating existing fault-lines in the population; a signifi cant decision for power structures in post-colonial Syria.

Understanding the extent to which a fragmented population would be signifi - cantly more accommodating of its rule, the French attempted to install a judicial system that appeared superfi cially to be genuinely pluralistic. Within this system personal status issues were devolved to communities as before, while civil courts were given jurisdiction over other matters in a system that bore strong connec- tions to Islamic jurisprudence as well as to the French civil code. Th e French paid close attention to the leaders of the communities fostering mutually ben- efi cial relationships that maintained the power base of both. In matters concern- ing indigenous populations, the judges within the system were entirely Syrian, while, when French interests were involved, the composition of the court was mixed, a faint echo of the earlier system of capitulations that existed under the Ottomans. 153 Th e system fi nally drew to an end with the start of independence negotiations with Syria (and Lebanon), eventually leading to full independence by 1941. One measure of the ‘success’ of French rule in Syria was the treatment of its religious minorities as they were:

[f ]or the fi rst time for many centuries, . . . treated on a level of full equality with the Sunni Moslems in all offi cial matters, judicial and administrative alike . . . Special regard was paid to their needs and traditions, and opportunities were given for the development of their self-consciousness and self-respect. Th e eff ects of generations of inferiority cannot be wholly wiped out in the course of twenty years, but in those years Syria and Lebanon made a certain advance towards individual equality as the democratic countries of the West understand it. 154

Th is does not fully refl ect the extent to which the treatment of non-Muslim pop- ulations was seen by the French as a strategy to fragment the Syrian population

¹⁵⁰ See comments attributed to M de Caixat at a session of the Permanent Mandates Commission in 1926, as refl ected in G Henry-Have and P Viénot, Les Relations de la France et de la Syrie (Centre d’Etudes de Politique Etrangère 1939). ¹⁵¹ M Khadduri, ‘Th e Alexandretta Dispute’ (1945) 39 American Journal of International Law

(1945) 406–25. ¹⁵² Hourani (n 40) 173. ¹⁵³ Ibid 174–4. ¹⁵⁴ Ibid 174–75.

Minority Rights in Syria284

and maintain its hegemony. As discussed in the previous subsection, while dis- crepancies existed between Muslim and non-Muslim populations under Ottoman rule, this cannot be overstated any more than the success of achieving ‘equality’ between non-Muslims and Muslims under French rule. Th e French made little headway in tackling questions of land tenure that served as the power base for landlords in the countryside, although they did make inroads into education, by setting up a number of schools and the Syrian University of Damascus. In general, however, the track record regarding the provision of amenities and the infrastructure of statehood was minimal, leading to disenchantment with French rule by 1941 and contributing to the push for independence. In terms of gen- eral human rights, the policies that Syria had become accustomed to, repression of free speech and strong police powers continued under the French, with the ‘Services Spéciaux’ becoming the scourge of society. 155 By far one of the most sig- nifi cant grievances that fuelled the desire for self-determination was the arbitrary division of Greater Syria and its split between the British and French in accord- ance with the Sykes–Picot Agreement, which was already contested at the time of its passage. 156

Several authors, including White and Kedourie, have commented on the impact of French rule on the mosaic of identities in the region, and especially on the transformation of the millet system into one aff ording protection for minori- ties. Writing in 1939–1940, Julien refl ected diff erently on what he saw as the French involvement in the Middle East:

Th ey [the French] found Islam provided the natives [sic] with a religious and a cultural ideal which they would stubbornly defend. France had not been fi tted by experience to understand and govern an Islamic and essentially Oriental people. In the years that fol- lowed the fall of Algiers [to France in 1830] she therefore had to fumble her way . . . Even today [in 1940] France possesses neither a colonial administration nor a body of doctrine suffi ciently well developed to enable her to coordinate her Moslem policy eff ectively. 157

Th e extent to which colonial policy could have been designed needed to be mind- ful of the transition issues from Ottoman to British and French rule, described by Bou-Nacklie in the following terms:

In 1918 British and French troops occupied the Arabic-speaking regions of the Ottoman Empire and by 1920 had expelled the Arab nationalist regime in Damascus and divided the area between themselves as they had agreed to do in the Sykes–Picot treaty signed two years earlier. Out of their share, the French created in 1920 the two Mandates of Syria and Lebanon with their own locally recruited military organization, fi rst called the Syrian Legion and later the Troupes Spéciales, which were combined for both countries. 158

¹⁵⁵ Ibid 176. ¹⁵⁶ Ibid. ¹⁵⁷ CA Julien, ‘France and Islam’ (1939–1940) 18 Foreign Aff airs 680–99. ¹⁵⁸ NE Bou-Nacklie, ‘Les Troupes Spéciales: Religious and Ethnic Recruitment, 1916–1946’

(1993) 25 International Journal of Middle Eastern Studies 645–60, 645.

1 History 285

While some historians have argued that the French deliberately recruited troops from ethnic and religious minorities in a bid to suppress the majority Sunni pop- ulation, Bou-Nacklie gives nuance to this assessment, suggesting wider recruit- ment. 159 In any case, with the debate around the utility of personal law heating up in the 1930s, the French sought to pass two decrees (Decree 60/LR of 13 March 1936 and Decree 146/LR of 18 November 1938) that would reform personal law in Syria, mainly by way of expansion of the millet system into a system of pref- erential rights for a larger number of groups. Th ese decrees met with signifi cant opposition 160 from many quarters. Of signifi cant contest were three provisions that were read as oppositional to Islamic formulations of law. Th e fi rst allowed the possibility of Muslims to change religion, considered apostasy under Islam. Th e second mandated that a child follow the father’s religion in the event of death or divorce. Th e fi nal point of contestation was the provision for recognition of the marriage of a Muslim woman to a non-Muslim man. 161 As White noted, these provisions disrupted:

. . . the proper functioning of society [which was provided by Islamic law], and by con- travening Islamic law these reforms would disturb that functioning. Neither the religious courts charged with implementing that law nor the state charged with guaranteeing it are mentioned: the signatories merely ask the prime minister to transmit their petition to the ‘competent authorities’ to bring about the decree’s revocation. Islamic law and tradition are the basis of the argument, and the decrees’ contravention of these is established by asser- tion (‘the said decree in its entirety contradicts the religion of Islam and its shari’a’) rather than through specifi c reference to the texts. 162

Th e general anti-French sentiment in the context of what was seen as social engin- eering to further their interests can also be seen in the intrigues that the French engaged in, in the context of recruiting troops from diff erent ethnic groups. A study of these patterns of recruitment as well as of communications between offi - cials leads Bou-Nacklie to conclude: ‘recruitment was not biased towards certain ethnic and religious minorities but was part of a policy of divide-and-rule that required setting religious and ethnic groups against each other and creating dis- harmony between individual members, factions, and the group at large’. 163

As noted earlier, it was also during French rule that a heightened sense of ‘eth- nicity’ entered into the political equation in Syria. While Ottoman policy sought to neutralize diff erence and subsume it within the larger identity of the umma , the dismantling of the Ottoman state and the intrusion of French models based on reiterating submerged ethnic rivalries, fuelled tension. 164 Th is could also be

¹⁵⁹ Ibid 646. ¹⁶⁰ B White, ‘Addressing the State: Th e Syrian “Ulama” Protest Personal Status Law Reform, 1939’

(2010) 42 International Journal of Middle Eastern Studies 10–12. ¹⁶¹ Ibid. ¹⁶² Ibid 11. ¹⁶³ Bou-Nacklie (n 158) 649. ¹⁶⁴ Ibid 729.

Minority Rights in Syria286

considered a push factor in the emerging strength of certain millets such as the Alawis.

Th e policies adopted by the French derived from their own perception of the societies that came under their mandate. Th e central identity issue as perceived by the French to be of relevance in the determination of a millet , was adherence and prevalence of Muslim religious law, which brought with it a religious hierar- chy derived from Islam, and spiritual/temporal leadership exercised by the Sultan over a vaguely defi ned geographic area. Th e argument concerning the role of the Sultan as the pre-eminent leader within the region derives from religious law; in terms of international legal scholarship it will be recalled that this was presented for the fi rst time in the context of territorial claims made by Morocco to the Maghreb and the Western Sahara in the case that arose before the International Court of Justice in 1975. 165

In his explanation of how the millet system had functioned pre-colonial interven- tion, White notes three salient facets: religion was the main identity marker; reli- gious law was paramount; and, religious hierarchies were wielded over non-Muslim communities on behalf of the Sultan. 166 Each factor came under pressure, as reli- gious law gave way to secular law through French rule, and this was carried through to post-colonial Syria. Th e attempts made to engage community claims in the region, backed by one or other of foreign powers, contributed to the emergence of stronger more assertive versions of ethno-nationalist identities than previously vis- ible. Finally, the move towards a secularized rather than religiously mandated Head of State weakened the claim of temporal and spiritual infallibility of the Sultan. It could, therefore, be asserted that French misunderstanding of the millet system was a mitigating factor in the development of politicized minority identities, which viewed millets as mutually suspicious groups, leading to the introduction of quasi millets to those that already existed under the Ottomans. 167 Th is was supposedly in line with the requirements of Article 22(4) of the League of Nations Covenant, which required mandate holders to ‘develop’ communities into nations. According to the Covenant:

Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. 168

Th is article bears the hallmark of classical Wilsonian self-determination, as best espoused in his famous statement in the Atlantic Charter of 1914 when Wilson posited that statesmen would ‘henceforth ignore [the principle of

¹⁶⁵ See ICJ Reports (1975) 40, para 82. ¹⁶⁶ White (n 37) 69. ¹⁶⁷ Ibid 70. ¹⁶⁸ Article 22(4) Covenant of the League of Nations 1919.

1 History 287

self-determination] at their peril’; 169 this was met with an immediate response from his then Secretary of State, Lansing, to the eff ect that the concept as articu- lated was dangerous to peace and security. 170 Th is led Jennings to comment in 1956:

Nearly forty years ago, a Professor of Political Science, who was also President of the United States, President Wilson, enunciated a doctrine which was ridiculous, but which was widely accepted as a sensible proposition, the doctrine of self-determination. On the surface it seemed reasonable: let the people decide. It was in fact ridiculous because people cannot decide until someone decides who the people are. 171

Syrian resistance to French rule expressed as nationalist sentiment, had a unify- ing eff ect on various communities. Th ere is literature to suggest that the French sought to infl uence the process and maintain hegemony by engaging in colonial polices of divide and rule 172 though this does not appear a compelling factor in the emergence of minority identity. 173 French policies did, however, serve to organize civil society along sectarian lines by distributing seats on representa- tive bodies to groups based on religious affi liation, maintaining the personal sta- tus laws derived from the Ottomans, and extending it to newer groups such as the Alawis. 174 However, with the Tanzimat Reforms having reduced the veracity of the personal status law, the system under French colonial law was probably weaker than the millet system in the earlier Ottoman period.

In any case, justifi cation for the maintenance of some form of personal law can be found under the terms of the mandate, given to France by the League of Nations in 1922 for the governance of Syria and Lebanon, which stated in Article 6: ‘Respect for the personal status of the various peoples and for their religious interests shall be fully guaranteed. In particular, the control and administration of Wakfs shall be exercised in complete accordance with religious law and the dispositions of the founders.’ 175

Th e mandate clarifi ed that the governance of the territory would be under- taken with a view to ‘facilitate the progressive development of Syria and Lebanon as independent states’ 176 and that local autonomy would be encouraged (as far as the circumstances permitted). 177 While existing religious courts continued to

¹⁶⁹ W Wilson, ‘Speech on the Fourteen Points’ (1918) Congressional Record, 65th Congress 2nd Session, 680–1. ¹⁷⁰ H Lansing, ‘Self-determination’, Saturday Evening Post (9 April 1921) 7. ¹⁷¹ I Jennings, An Approach to Self Governance (Cambridge University Press 1956) 55–6. ¹⁷² For a clear example of this, see B White, ‘Th e Kurds of Damascus in the 1930s: Development of

the Politics of Ethnicity’ (2010) 46(6) Middle Eastern Studies 901–17. ¹⁷³ White (n 37) 70. ¹⁷⁴ Ibid. ¹⁷⁵ League of Nations Offi cial Journal (August 1922) 1013–17 reproduced in SH Longrigg, Syria and

Lebanon under French Mandate (Oxford University Press 1958) 376–7. ¹⁷⁶ Article 1, Th e Mandate for Syria and Lebanon, 24 July 1922 available in League of Nations

Offi cial Journal (August 1922) 1013–17. ¹⁷⁷ Ibid.

Minority Rights in Syria288

function under French rule, new religious distinctions emerged, such as those for the Alawis, who were granted the right to host their own courts on the grounds of a legal opinion provided by a Muslim scholar. 178 Th e Alawis had previously not merited special protection since such rights were only available to non-Muslim communities. Th ere had been signifi cant resistance to the idea of the Alawis as Muslim on the basis of their religious beliefs, which led many to consider them as heretical. 179 However, under the French, they gained power and infl uence, and the decision to recognize the Alawis as a quasi millet was a contributing factor to the emergence of ‘minorities’ in contemporary Syria, since the decision was followed, in 1936, by the issuance of a decree on religious law that required communities to submit statutes to the government for such claims, based on their religious customs. 180 Th is decree met signifi cant opposition from the Sunni population, though the French continued to solicit proposals from various com- munities including the Ismailis. 181

Having explored the relevant historical basis to the evolution and treatment of minorities in Syria, it is now time to examine the groups that fall within the category of ‘minorities’ in a national context.

2 Identifi cation of Minorities

In studying the prevalence of the dhimmi system in a contemporary context, Hashemi suggests that, while many aspects of the system such as the public rec- ognition of minorities and the payment of jizya have been abandoned, some vestiges continue to endure in many Middle Eastern states. Th ese facets today are mainly visible in the area of personal status rules regarding recognition of marriage and other religiously determinable practices. 182 Th is leads Hashemi to argue that the modern prevalence of the dhimmi system provides a basis for it to be recognized as regional custom:

Considering the consistency and the wide geographical extension of its application, the Dhimmi personal system deserves to be recognized as a regional customary system for protecting minorities. Furthermore, considering its invaluable [contemporary] historical contribution to the protection of minorities and its capability for further contribution, it might also be held as a model for other multi-cultural, multi-religious communities for the protection of minorities and their right to identity. 183

¹⁷⁸ See B Masters, ‘Th e View from the Province: Syrian Chronicles of the Eighteenth Century’ (1994) 114(3) Th e Journal of the American Oriental Society 353–62. ¹⁷⁹ See Chapter 2, section 2.1. ¹⁸⁰ See Arrêté no 60/L.R. (13 March 1936) issued by High Commissioner Damien de Martel. ¹⁸¹ White (n 37) 72. ¹⁸² Hashemi (n 13) 1–2. ¹⁸³ Ibid 26 (content within square brackets added).

2 Identifi cation of Minorities 289

If Hashemi’s assessment about the adherence to the dhimmi system is taken at face value, the issue of the identifi cation of minorities in contemporary Syria would be straightforward—based on those groups considered millets during the Ottoman era. However, a number of factors make such a conclusion inappropri- ate. For a start, French machinations discussed above seemed to contribute to increased fragmentation, accompanied by the growth of political aspirations that were not visible in previous centuries. In addition, the continuing arrival of new populations renders analysis based solely on the millet system redundant. Against this, the ‘success’ of the millet system has meant that ancient identities have been preserved relatively unmolested within the state.

One issue that needs to be addressed before any identifi cation of minorities in Syria can commence, is the nature of the base on which populations are demar- cated. As described in the previous section, the overarching emphasis of the millet system lay on religious identity. However, French infl uence on Syria made the notion of sect signifi cantly more important. In describing the ethnic composition of contemporary Syria in 2006, Perthes makes the following observation:

Th e Syrian population is roughly 50 percent Sunni Arab and 20 percent Sunni Kurdish, with the rest composed of other Arab groups (Alawites, Christians, Druze) and smaller non-Arab minorities. Compared to some of its neighbors, Syria looks like a showcase of sectarian toleration. Yet some remote regions in north-eastern Syria, where tensions between Arabs and Kurds run high, are no longer fully under the central government’s control. Sunni notables complain about growing Shiite infl uence, especially Iranian money fl owing in . . . Th e growing Sunni-Shiite polarization in the region has also prompted other powers, notably Saudi Arabia, to try to persuade Syria to downgrade its relationship with Iran—in an eff ort to prevent the formation of a ‘Shiite crescent’ that could one day stretch from Iran, over a Shiite-dominated Iraq and Alawite-ruled Syria, and to a Lebanon domi- nated by the Shiite Hezbollah. All of this gives Syria good reason to fear the breakup of Iraq and the extension of civil war, and any further escalation of sectarian . . . tensions in the region. 184

Historically, the most signifi cant benefi t of the millet system analysed in section 1 is that it succeeded in establishing legitimacy and group ethos of Christian and Jewish communities within the region. By facilitating communities to self-govern, the distance between the governors and the governed was reduced. Th at the lead- ers were drawn from within the community and immersed in their cultural and religious practices served as protection for those customs and traditions; something often lost in the context of many communities globally. Against these positive features come real concerns that need to be heeded. While the system protected smaller sects and religiously identifi able units of population, it often excluded many Muslim minorities—regarded as homogenously Muslim, and subject to the general laws of the land. Yet, sociologists highlight that the diff erences in ideology and cus- toms between some of these groups and their co-religionists were often greater than

¹⁸⁴ Perthes (n 2) 33–4.

Minority Rights in Syria290

that between Muslims and Christians. Th is can be attributed to the fact that the various ideas that fl owed through Syria were often imbibed diff erently by groups, who developed their own hybrid versions of culture that did not present themselves easily to broad classifi cation, least of all to French colonizers with their own govern- ance agenda. Th e biggest drawback of the system was that religious community became the fundamental basis of the political and social obligations of individuals. Rather than seeing any allegiance to a grander project of statehood, allegiances were narrowly restricted, framed with suspicion and resentment towards other groups who were seen as rivals, making for insular communities that shirked interdepend- ence. 185 Rather than occurring only between the two main religions left, this antag- onism also occurred on the basis of sect, making society increasingly fragmented. Th e lack of rigidity in terms of social alliances also made society static:

Whatever its origin, a sect once founded tended to become a closed community very con- scious of its diff erence from the surrounding world: a diff erence which revealed itself not only in religious beliefs, but also in customs and traditions. Th e sect persisted as a social entity even after the impulse of affi rmation which gave it birth had died away. To leave one’s sect was to leave one’s whole world, and to live without loyalties, the protection of a community, the consciousness of solidarity and the comfort of normality. 186

Th e Druze community is a case in point. Th e main reason for disquiet against this community lay in its heterodox belief system, which did not allow the commu- nity to fi t neatly into the Ottoman millet system. While treated in administrative terms as Muslims during Ottoman rule (including in the context of taxation), they were not fully accepted as part of the umma or community of believers. One of the best examples of this, given by Abu-Husayn, is that any member of the Druze community who applied for an offi cial appointment had to identify as Sunni Muslim. 187 Th e Druze community was also periodically charged poll taxes, normally payable by dhimmi and not Muslim communities. 188 Th ere was a deep-seated anti-Druze feeling among the Sunni population, in particular; a sentiment captured in the work of noted historian, Ibn Tulun of Damascus, who, writing in the sixteenth century, depicted Druze as heretics. 189

Another trend that ran through the history of Syria, with great implications for the identifi cation of minorities, was the gradual Arabization of culture. Arab civi- lization and the birth of Islam in the seventh century initiated this process, but it was maintained through regular immigration from the Arabian Peninsula and through Bedouin who settled in the Syrian desert. Th e push for independence

¹⁸⁵ Hourani (n 40) 63vi. ¹⁸⁶ Ibid 64. ¹⁸⁷ Abdul-Rahim Abu-Husayn, ‘Problems in the Ottoman Administration in Syria During the

16th and 17th Centuries: Th e Case of the Sanjak of Beirut-Sidon’ (1992) 24 International Journal of Middle Eastern Studies 665–75, 666. ¹⁸⁸ Ibid. ¹⁸⁹ See S al-Din Muhammad IbnTulun, ‘Sail al-Sarim c alaatba c al-Hakim bi-Amr Allah’, Taymuriyya

Library, manuscript No 79, fols 247–60, as cited by Abu-Husayn (n 74) 667.

2 Identifi cation of Minorities 291

strengthened this as generations of Syrians sought to cast off the colonial shack- les. Th e mobilization of Arabian nationalism was premised on the desire for self-determination, but, in accepting this overarching identity, many minorities found themselves in a position of facing the uncomfortable prospect of being submerged in a Muslim state, and, thus, viewed the millet system as providing communitarian protection. Th is was not only an issue for Christians and Jews; the Kurds, who were Muslim, resisted pressures to Arabize, with the more mod- ern version of the millet system allowing their identity and culture to fl ourish to the extent possible in line with French colonial interests.

Th e contemporary acceptance of sect as an acceptable base of identity contrasts with its treatment during the Ottoman era. Longrigg highlighted the Ottoman government’s ambiguity towards dissident Muslim sects. It was clear for instance that the Nusayris, Druze, Mutawila, and Isma’ilis were not permitted separate sta- tus, with their personal status issues left to the jurisdiction of the Sunni Qadis . As a result, these groups did not merit the recognition of religious hierarchies and did not gain offi cial seats on Administrative Councils. Even ‘stronger’ or ‘compact’ minorities such as Alawites and Druze, with strong territorial bases where they formed the majority, were submerged within the general vilayets of Damascus and Aleppo; a policy reversed by the French in keeping with their colonial strategy, culminating in separate status under French administration until their annexation into Syria in 1942. 190 Longrigg disagrees with the portrayal of Syrian communities as constituting a ‘mosaic of minorities’, arguing that they had many more things in common than this idea elaborates. 191

Two interesting sets of fi gures from 1925 and 1938, on the historical identi- fi cation of minorities in Syria, indicate the prevalence of strong identities at the time, and are worth briefl y dwelling on. Th e fi gures in Table 1 are from a 1925 census, 192 which covers Syria and Lebanon, and classifi es and then sub-classifi es groups according to religion. Th ese fi gures highlight that, while ‘Sunni Arabs’ was the largest among the fi ve categories identifi ed when the Circassians, Kurds, and ‘foreign’ Sunni are taken out of the fi gure, they are reduced to being the lar- gest ethno-religious group, but not the majority. Table 2, derived from Hourani’s work in the 1940s, presents a diff erent snap-shot of Syria and the relative numeri- cal strengths. 193 Here, fi gures reveal dominance in Syria of Muslim communities, and, within that, a strong showing of Sunni Muslims. When compared with Lebanon, the fi gures by 1938 already showed signifi cant discrepancies, with many of Syria’s Christian communities moving to Lebanon as the prospect of its independence as a Christian state became clearer. Th is resulted in dwindling

¹⁹⁰ Longrigg (n 175) 9. ¹⁹¹ Ibid 11. ¹⁹² Bou-Nacklie (n 158) 646. Th ese fi gures were derived from: Census of 1925 for Syria and

Lebanon. E Rabbath, L’Evolution politique de la Syrie sous mandat (Marcel Riviere 1928) 3; A Hourani, Minorities in the Arab World (Oxford University Press 1947) 63, 78. ¹⁹³ Ministère des Aff aires Etrangères, Rapport (1938) 220–221, as provided in Hourani (n 40) 121.

Minority Rights in Syria292

numbers, especially among Maronites who crossed the boundary from minority to largest ethnic group by relocating to Mount Lebanon.

Another comment vis-à-vis the fi gures, is that when classifi ed in this manner it is diffi cult to distill the number of Kurds (unoffi cially estimated at 200,000) as they are absorbed under the category of Arab Sunni. Not having specifi c rec- ognition of Kurds as a category makes it easier to ignore in the game of enti- tlements. Many Kurds in Northern Syria actually crossed over to escape the oppression they were beginning to face in post-Ottoman Turkey, joining longer

Table 1

Religious group % Population

Sunni Muslims Arab Sunnis Non-Arab Circassians Non-Arab Kurds Foreign Arab Sunnis ± 200,000 nomads Subtotal 1,275,816

38.2 1.5 6.2 1.9 8.9 56.7

Shii Muslims Alawis Twelver Shi‛a Druze Ismaiilis Subtotal 438,939

10.1 4.9 3.8 0.7 19.5

Christians Independent of Rome Greek Orthodox Armenian Orthodox Jacobites Protestants Nestorian Chaldeans Subtotal 198,098

6.7 1.3 0.4 0.4 0.05 8.8

Christians United with Rome Maronite Greek Catholics Armenian Catholics Syriacs Assyrian Chaldeans Roman Catholics Subtotal Subtotal native Christians Subtotal foreign Christians 307,321

8.3 3.1 1.8 0.3 0.05 0.1 13.7 19.4 3.1

Others Jews Miscellaneous

0.7 0.4

TOTAL FOR ALL GROUPS 2,246,857

2 Identifi cation of Minorities 293

established Kurdish communities that had lived there throughout the Ottoman and pre-Ottoman periods. 194 Th e infl uence of Kurdish culture was also signifi - cant in that Kurdish is spoken among Yazidis, Alawis, and Christians. 195 Another linguistic group excluded from Hourani’s fi gures are Turkish-speaking Turkoman who derive from Central Asia. Th ese communities settled over time in Northern Syria where they live in Kurdish-dominated areas. Th e other two groups of lin- guistic minorities are the Circassians, Russian-speaking Muslim population origi- nating from the Caucasus, and the Yazidis, who are better represented across the border in Iraq.

¹⁹⁴ Th e exclusion of Kurds has been a recurring theme in the examination of Syrian human rights performance by the UN Human Rights Committee. See e.g. Concluding Observations of the UN Human Rights Committee, UN Doc CCPR/CO/71/SYR (24 April 2001) para 27; and Concluding Observations of the UN Human Rights Committee, UN Doc. CCPR/CO/84/SYR (9 August 2005) para 19. ¹⁹⁵ Hourani (n 40) 126.

Table 2

Community Numbers

Muslim Sunnis 1,737,402

Shi’is 11,541

Druze 79,428

Alawis 274,486

Isma’ilis 24,390

Subtotal 2,127,247

Christian Maronite 11,800

Roman Catholics (Latin rite) 4,750

Greek Orthodox 115,118

Greek Catholics 42,427

Syrian Orthodox (Jacobites) 32,892

Syrian Catholics 14,182

Armenian Orthodox (Gregorians) 86,742

Armenian Catholics 12,137

Assyrians and Chaldaean Catholics 3,759

Protestants 7,660

Subtotal 331,467

Jews 26,250

Miscellaneous 2,063

Total 2,487,027

Minority Rights in Syria294

Th erefore, in identifying ‘minorities’ in contemporary Syria, attention needs to be paid to what Karpat labels, the ‘peculiar situation of the question of ethnic iden- tity in the Ottoman state’. 196 He explains this peculiarity in the following terms:

. . . the Ottoman state, from inception to its end, embraced a great variety of ethnic-religious groups which throughout the duration of the state not only maintained their ethnic iden- tity and consciousness but also succeeded, chiefl y in the nineteenth century, in convert- ing that identity into national consciousness. Th e ethno religious identity became the psychological-ideological foundation of nationhood for these groups. Th e Ottoman state developed a policy towards its ethnic-religious communities designed not to change their ethnic composition or to aff ect their identity but, rather, to integrate them into the admin- istrative system by recognizing them and giving them a large degree of cultural and reli- gious autonomy and local self-rule. Yet, inadvertently, the internal economic and social forces, and later international political and economic infl uences, produced signifi cant changes in the composition and identity of various ethnic groups. 197

Th is leads him to question the veracity of the sustenance of ethno-nationalist groups since:

. . . while there was a substantial degree of ethnic continuity among various groups in the Ottoman state, the composition, self-image, and future aspirations of these ethnic groups underwent changes so substantial as to make the ethnic continuity a matter of form rather than substance. Th e fact that a particular group retained its name and to some extent its language and ethnic traditions—that is, some of the outward symbols of ethnic identifi - cation—does not necessarily signify that it also retained a continuous, unaltered original identity. 198

Th is phenomenon makes it diffi cult to fi t the Ottoman experience of ethnicity and minorities into a global comparative frame, with Karpat advocating ‘special conceptual and methodological considerations capable of taking into account the specifi c constitutional, ideological, and cultural peculiarities of that system’. 199 Th is leads him to issue a warning that we have been particularly mindful of in seeking to examine the question of minorities in this region, throughout this work. Th e warning is:

One cannot, and must not, force the concepts and analytical categories developed by the social sciences in the West upon other markedly diff erent societies. Social science premises and concepts do not have universal validity. Th ey refl ect chiefl y the cultural, political, and ideological values and assumptions, the historical-social experiences, and the evolu- tion of Western society. Th e profound political and cultural revolution occurring in the Muslim world today, which is wrongly dubbed an ‘Islamic revival,’ is in a good measure an intellectual reaction to the long domination of the ‘Westernists’ and, especially, to their

¹⁹⁶ Karpat (n 78) 712. ¹⁹⁷ Ibid. ¹⁹⁸ Ibid. ¹⁹⁹ Ibid 713.

2 Identifi cation of Minorities 295

mechanical application of Western social science concepts to the study of their own Islamic societies. Th e Islamic world is undergoing today profound economic, social, and politi- cal changes, including a degree of ethnic revival. However, these changes, and especially the problem of ethnicity, can be properly studied and understood only within the Islamic world’s own terms of reference. Suffi ce it to mention that today most of the Muslim socie- ties have adopted the concept of the nation-state as their constitutional order. 200

Without entering the realm of cultural relativism, we posit that human rights could be considered a universalist value, though we fully accept that its modali- ties vary tremendously in diff erent societies. Its basic premise is focussed on the necessity to create mechanisms that guarantee the inherent dignity and worth of human beings. With this in mind, the aspiration in this book is to test the extent to which societies are seeking to create mechanisms that provide all its constitu- ent populations with an opportunity to realize this dignity and worth through the trappings of the modern state, and the relevant constitutional order. Our approach to the question of ethnic identity in the region mirrors the approach taken by Karpat, namely to consider that:

Ethnicity, or ethnic identity, may have certain tangible roots such as language, religion, education, organizational membership, personal identifi cation with a group, media use, etc. However, the operational or practical dimension of ethnicity, that is, its eff ects, are determined to a very large extent by the socio-political system and its ideology. 201

Th e diffi culty with the classifi cation of Muslim groups has already been addressed in the introduction to this volume. Th is diffi culty is, to a lesser extent, also a factor in determining the classifi cation of Christian groups. Ten per cent of con- temporary Syrians could be classed as Christian. 202 However, such a measure fails to account for the heterogeneity of the Christian population, including Syrian Catholics, followers of the Melkite Church, Assyrian Church, Copts, Maronite, Roman Catholics, and Chaldo Assyrians; the numbers of the latter have been swelled by refugees from Iraq.

Th ere are also factors to be borne in mind for smaller Muslim groups such as the Ismailis. Douwes and Lewis write about a controversial visit made in the late 1880s by a small group of Syrian Ismailis to Bombay, to visit the third Aga Khan, who they accepted as their Imam on return to Syria. Nearly a decade later, the religious leader of that segment of Ismailis was arrested and tried for treason, during a period of intense repression of the community that only ended with the Ottoman constitutional revolution of 1908. 203 While this may be considered a

²⁰⁰ Ibid. ²⁰¹ Ibid. ²⁰² AR Harrington, ‘Resurrection from Babel: Th e Cultural, Political and Legal Status of Christian

Communities in Lebanon and Syria and their Prospects for the Future’ (2005–2006) 13(2) Tulsa Journal of Comparative and International Law 217–48, 240. ²⁰³ D Douwes and NN Lewis, ‘Th e Trials of Syrian Ismailis in the First Decade of the Twentieth

Century’ (1989) 21 International Journal of Middle Eastern Studies 215–32.

Minority Rights in Syria296

historical footnote, it shows the extent to which the Ottomans were concerned about signs of subversive activity, especially if that activity was deemed motivated by a foreign power. 204 Th e key aspect to the trials that followed was the accept- ance by the community of the Aga Khan, a British Indian subject at the time, as Imam, therefore denying the authority of the Ottoman Sultan over them. 205 Th e issue went to trial at the turn of the nineteenth century, with a number of individuals accused by the public prosecutor of sedition, heresy, and the intended destruction of society. 206 Th e undertrials accepted the temporal authority of the Ottoman Sultan, insisting they were law-abiding Ottoman subjects. However, they:

. . . reiterated that the powers of their Imam were exclusively religious and he had no earthly ambitions. Th ey went on, however, to extol his attributes in terms that must have shocked the members of the court; he was, they said, an omnipotent and omnipresent being whose ‘material envelope’ only was to be found in Bombay, while his ‘divine impal- pable essence’ pervaded the universe. Sultan Abdulhamid, in contrast, was a ‘mere ter- restrial monarch’, appointed by God to serve the haramayn of Mecca and Medina and to govern the Empire. 207

While the focus on individual communities reveals much, White’s broad classifi ca- tion of groups, diff erent to those discussed above, may prove useful in gaining an overview of the identities of the communities that could be termed minorities in the contemporary context. His typology includes four main groupings: non-Arabic speaking Sunni Muslims (Circassians, Kurds, and Turks); Arabic-speaking non- Sunni Muslim communities (Druze, Alawis, Ismailis); Arabic-speaking Christians (Syrian Christians, Maronite); and non-Arabic-speaking Christian refugees (Armenians, Assyro-Chaldeans). 208

Th e issue of the Circassians is particularly interesting since they sought separ- ate status but were denied this on the basis that they fi t within Sunni Islam, even though they were ethnically distinct from the Arabic-speaking Sunni Muslim population. 209 White highlights how the Syrian majority, the Sunnis, began to spilt along ethno-linguistic lines around the time of independence, exacerbated by the fact that this notional group could not have been considered a majority in every Syrian province. 210 He questions the effi cacy of this identity grouping, suggesting it would have been easier for Arabic-speaking populations to feel part of the majority irrespective of religious affi liation, than for non-Arabic speaking

²⁰⁴ Ibid 215. ²⁰⁵ Ibid 221. ²⁰⁶ Ibid 222. ²⁰⁷ As quoted in Douwes and Lewis (n 203) 221. ²⁰⁸ White (n 37) 71. ²⁰⁹ Ibid 73. ²¹⁰ Ibid 71.

2 Identifi cation of Minorities 297

communities. 211 Th is suggests language rather than ethnicity may have been a more compelling factor governing identity in the emerging Syrian state. 212

As the various communities began to understand the League of Nations’ prop- ositions governing self-determination, they pressed claims for separatism, backed by a variety of external actors. Th e French discomfort with entertaining these claims stems from a basic conception of what they believed constituted commu- nities. Th is is best articulated in the words of the High Commissioner’s Delegate to the Contrôle Général des Wakfs , who stated:

Under the name ‘communities’ are generally designated groupings of individuals of the same religion and the same rite . . . Th is defi nition of communities evidently excludes any other grouping whose individuals are united by links other than confessional links (community of religion and of rite) . . . Th e Tcherkess [Circassians] are of Sunni Muslim religion (Hanafi te rite) and cannot, from the confessional point of view, form a distinct community. 213

Th ese narrow confi nes show how the French privileged certain kinds of identity over others, and explains reticence towards recognizing Kurds as a separate group. White narrates the further explanation provided in the letter regarding the status of the Circassians:

Th e Circassians could . . . be considered as an ‘ethnic minority’ if international law gave them this status and they had specifi c common interests to defend. However, [it was better to adopt] ‘in the political order’ a religious classifi cation, as ‘resolving without diffi culty the problem of representation of the minorities or the distribution of seats in the representa- tive assemblies’. 214

Th e reference to ‘international law’ here could only be a reference to the emerging system of minority rights protection as articulated in the League of Nations, 215 though the issue at the time was easily confused with Wilsonian visions of self-determination as articulated above. 216 International law could be considered a rare interlocutor in questions concerning the defi nition of an ‘ethnic minority’, being more concerned with the maintenance of international peace and security between states than questions of how states are constitutionally organized. Th e

²¹¹ Ibid 72. ²¹² Ibid 73. White provides further evidence for this in the attempt by Christian Arabic speak-

ers to have the Arab Prophet’s birthday as a national holiday in a bid to unite the Arabic-speaking populations. ²¹³ MAE-N/SL, box 568, dossier Tcherkess, subdossier Armement des villages tcherkess de

Boueidan, Blei, Bourak. HC’s delegate to State of Syria (Veber) to HC’s delegate to Contrôle Général des Wakfs, 23 February 1928 (très secret). ²¹⁴ White (n 37) 73. ²¹⁵ See J Stone, ‘Procedure under the Minorities Treaties’ (1932) 26(3) American Journal of

International Law 502–13 and J Kunz, ‘Th e Present Status of the International Law for the Protection of Minorities’ (1954) 48(2) American Journal of International Law 282–7 and M Mazower, ‘Minorities and the League of Nations in Interwar Europe’ (1997) 126 Daedalus 47–63. ²¹⁶ See A Whelan, ‘Wilsonian Self-determination and the Versailles Settlement’ (1994) 43

International & Comparative Law Quarterly 99.

Minority Rights in Syria298

reference to ‘political order’ is, thus, considerably more compelling than that to ‘international law’. In the calculus that constituted political order at the time, rec- ognition for the Circassians as a specifi c group with the right to further represen- tation and distribution of seats would have unsettled the delicate balance France sought to maintain towards Christians in the region. 217 But, while Circassians may have sought status as a separate community with the right to greater and protected representation, activism from the Kurds was viewed as a considerably greater threat, since it could undermine political order within the statelet, com- promise wider order within the region, and allow ethnicity to trump religion in the context of identity formulations; this the French considered an anathema to the Ottoman millet system they inherited and sought, in principle, to uphold for ulterior motives. While the French may not have given smaller minorities such as the Circassians what they desired in terms of autonomy and representation, they used them in specifi c contexts, such as in forming the bulk of what is referred to in the literature as Troupes du Levant . 218

White also engages the question of the status of Muslim Arabic-speaking sects such as the Druze and Alawis. While clear that these communities did not merit status as millets , they appear to have functioned as quasi millets , managing their internal aff airs without undue molestation from the Ottomans. White and oth- ers attribute this to their physical isolation away from major towns and villages and suggest that their autonomy fl uctuated from offi cial recognition to tolerance, with some level of state interference. Th is led one writer to label them ‘com- pact minorities’ 219 on the grounds that their territorial concentration allowed the French to designate special territorial autonomy regimes (as opposed to the personal autonomy regime that forms the heart of the Ottoman millet system). Creating autonomous regimes, such as the territoire des alawouis , was also a com- promise for the French since it was done on the grounds of religion rather than ethnicity, thus, allowing consistency with the refusal of similar permission to the Kurds. But, as White writes, labelling such communities as minorities prior to Syrian independence fails to explain the relationship they had with the French authorities, on the one hand, and with articulations of Arab nationalism, on the other. 220 Th e communities, especially the Alawis, also rarely used the term ‘minority’ to describe themselves 221 with one notable exception in a petition to Paris and the League of Nations in 1936. 222 By and large, the articulation

²¹⁷ White (n 37) 73. ²¹⁸ See generally, C de Gaulle, Historie des Troupes du Levant: Volumen 1 de Les Armées francaises

d’outremer (Imprimerie Nationale 1931). ²¹⁹ P Khoury, Syria and the French Mandate: Th e Politics of Arab Nationalism 1920–1945 (Princeton

University Press 1987) ch 20. ²²⁰ White (n 37) 74. ²²¹ One author even refers to them as a majority, see Y al-Hakim, Suriyyawal-Intidâb al-Faransî:

Dhikriyat IV [Syria and the French Mandate: Memoirs IV] (Dar al-Naharlil-Nashr 1983). ²²² White (n 37) 74.

2 Identifi cation of Minorities 299

of autonomy for the community is necessarily based on their autonomy as a self-standing community, rather than as a ‘minority’ in relation to another.

Th e resistance to the term ‘minority’ is visible among strong communities in many parts of the post-colonial world. Th ere are echoes of this in the devel- oped world: the Basques resist such terminology in favour of ‘nationhood’. 223 However, what is interesting in Syria in particular, is that while many Muslim ethnic, linguistic groups, and sects reject the term ‘minority’, Christian commu- nities appear to have accepted it and used it in many petitions to the League of Nations minority regime. 224

Th e term ‘minority’ in today’s parlance could be attributed more to the French decision to equate minorities with millets rather than the Ottoman millet system, even though the correlation was problematic. Some territorially based communi- ties, such as the Alawis and Druze, gained a degree of formal autonomy that they only had temporarily and unoffi cially from the Ottomans. Other groups’ aspir- ations were denied on the grounds that they were ethnic rather than religious claims, with the primary losers being the Circassians and Kurds. However, for Christian groups, considered minorities without diffi culty, France determined status on the basis of its own political interests. First, it justifi ed its presence in the region as stemming from an interest in ‘protecting minorities’. ‘Minorities’, in this context referred to Christians, with token attention to Jews, a legacy refl ected as early as 1250 with the Promise of St Louis to the Maronites. 225 Secondly, it sought to ensure that the protection aff orded by the millet system continued, and, thirdly, it reconfi gured territory, separating Mount Lebanon from the rest of Syria to maintain a state where Christians were not subsumed as minorities. White identifi es three reasons why Christians accepted the tag of ‘minorities’. He suggests that, in part, it was underpinned by a desire to maintain their position as privileged clients in French eyes; secondly, it was an assertion against seculariza- tion, seen as harmful to minority religions; and thirdly, it was a means by which religious leaders maintained hegemony over their communities. 226

A further explanation of the Christian position is provided by the ‘minor- ity’s controversy of 1936’, refl ected in a letter written one year later by High Commissioner Damien de Martel to Paris in the aftermath of a meeting with the apostolic delegate, Monsignor Leprêtre, and the Syrian Catholic, Monsignor Tappouni. Th e meeting appears to have focussed on commentary on the 1936 Treaty, considered by the two representatives as ‘light-handed’. 227 Martel writes:

²²³ See M Heiberg, Th e Making of the Basque Nation (Cambridge University Press 2007). ²²⁴ For more on this, albeit narrated through an Assyrian lens, see J Joseph, Th e Modern Assyrians of

the Middle East: Encounters with Western Christian Missions, Archaeologists, and Colonial Power (Brill 2000). ²²⁵ General background information on St Louis and the Treaty can be found on the website of the

Encyclopaedia Britannica at <http://original.britannica.com/eb/topic-348849/Louis-IX> accessed 21 October 2010 (subscription required). ²²⁶ White (n 37) 78. ²²⁷ Ibid 79.

http://original.britannica.com/eb/topic-348849/Louis-IX

Minority Rights in Syria300

[T]hese intelligent prelates willingly recognise that the disappearance of the Ottoman Empire has put the question of minorities onto quite new bases. Within an empire com- posed of heterogeneous nationalities, the Christian communities were able to constitute themselves as ‘nations’ and benefi t from a foreign protection the principle of which was not contested. But on the ruins of the Ottoman Empire states with a national basis have cre- ated themselves, whose patriotism risks being all the stormier for being younger . . . Th e tra- ditional mission of protector of minorities [sic] that France has assumed for centuries has become, because of this fact, much more complex. By protecting them too assertively or too strictly, or by seeming to take their presence as a pretext for hindering the development of national sentiment, France would have risked making its protégés into foreign bodies condemned to exodus or massacre on the day when international complications prevented her from defending the threatened minorities eff ectively. 228

In the fi nal analysis, what White demonstrates through his rich historical narra- tive is that:

. . . the formation of ‘majority’ and ‘minority’ consciousness in post-Ottoman Syria was one larger process, intimately linked with the development of the nation-state form through issues including separatism, borders, language, national holidays, and education in an international system ordered by the League of Nations. 229

He advocates caution and highlights an issue that minority rights scholars are particularly aware of, namely that:

Th ere are undoubtedly diffi culties as to the effi cacy of the term ‘minority’ and the extent to which this status could be based on religion, language, or even ethnicity. In contemporary Syria, especially during the reign of the Asads, much has been made about the extent to which the state was governed by a minority Alawite coterie. However, such assertions appear to unduly privilege questions of identity over those of ingenuity in seizing and maintaining a hold on power in a society that is fragmented along a number of diff erent lines.

3 Rights of Minorities

Having understood the historical basis for the various communities in Syria and the way in which they could be identifi ed in a contemporary context, this section turns to the legislative framework governing the state and how it tackles minority

²²⁸ De Martel to MAE (7 July 1937) MAE-N/SL box 494, dossier Traité Franco-Syrien— Application—Question des Minorités as quoted by White (n 37) 79. ²²⁹ White (n 37) 81. ²³⁰ Ibid.

3 Rights of Minorities 301

issues. We approach this task by, fi rst, tackling the underlying issue of the nature of the contemporary state since the Asads came to power, refl ecting specifi cally on the state of human rights. No rights, minority or other, can be understood without a thorough reckoning of the extent to which Syria stamps its authority over the population. Th is review draws on reports available through the United Nations human rights system, focussing especially on Syria’s state report to the Human Rights Committee (HRC), the monitoring body of the International Covenant on Civil and Political Rights (ICCPR), to which Syria acceded in 1969. 231 Special attention is paid to the concluding observations of the various commit- tees, since they highlight the nature of the challenge for human rights in Syria. Th e nature of these materials means that the period covered pre-dates the events of the Arab Spring, but these nonetheless detail the backdrop to the opposition to the Asad regime. We then turn to analyse the Constitution, the historical debates around its crafting as well as more contemporary issues. In countries where the rule of law is not adequately established, a constitution can do little more than indicate the aspiration for the state that the constitutional drafters intended. Th is vision becomes germane in the face of the transition that appears inevitable in Syria. Section 3.3 identifi es a number of themes relevant to minorities and seeks to assess the impact of the current legislative framework on minority issues.

3.1 Th e rule of law in Syria

Perthes argues that Syrian involvement in its neighbours’ aff airs is essentially a diversion to detract from authoritarian rule at home. 232 Th is rule has fi nally come under pressure in the context of the events attendant to the Arab Spring in 2011. Th e most signifi cant of the challenges facing contemporary Syria are: (a) the extent to which President Asad can persuade/force the population to accept his writ; (b) assuming that President Asad stays in power, the nature of the human rights compromises he would need to make; (c) assuming President Asad loses power, the extent to which a strong rule of law and machinery for upholding of human rights could be installed; and (d) the nature of the emerging constitu- tional and legislative framework for human rights and the extent to which these are designed to include all segments of the population. It is equally clear that the sectarian tensions overpowering Iraq since the fall of Saddam Hussein are likely to continue to exert pressure on Syrian national politics, due to close-knit ties among the transnational communities in the region.

One of the key reform demands of the Syrian protests in 2011 was that the state of emergency legislation, in place since 1963, be lifted. Although the gov- ernment conceded and passed a bill in April 2011 lifting the then 48-year-old law, decades of emergency rule were key to political mobilization in Syria and

²³¹ With reservations to Article 48(1). ²³² Perthes (n 2) 33–40.

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merit some review. Under the State of Emergency according to Military Order No (2) of 8 March 1963, 233 extensive police powers were given to the state. Th e legislation was deemed unconstitutional in a report by the self-styled Syrian Human Rights Commission , 234 which accurately highlights its legislative basis as Legislative Decree No (51) dated 22 December 1962. Article (2) of that legisla- tion provides:

(1) Th e State of Emergency should be declared according to a decree issued at the Council of Ministers chaired by the President of the Republic with a 2/3 majority of the mem- bers, provided that the decree will be submitted to the fi rst meeting of the House of Deputies.

(2) Th e Decree should specify the rules and measures that the Military Governor can take, as indicated in the fourth article of this legislative decree without contradicting the clauses of the fi fth article thereof.

In this context, Article 5 of the Syrian Constitution is reported as providing notional powers to the Council of Ministers:

Th e Council of Ministers held under the chairmanship of the President of the Republic may expand the domain of rules and measures indicated in the previous article when nec- essary, according to a decree which has to be submitted to the fi rst meeting of the House of Deputies . . . 235

Article 5 makes it explicit that it is only the Martial Ruler or his deputy who is invested with the authority to ‘issue written orders intended to establish all or some rules and security measures and refer violations’ perpetrators to Military Courts’. 236 Th e rules articulated in Article 5, are extremely wide-ranging, and include:

. . . imposition of restrictions on persons’ freedom to hold meetings and have residence, • move about and pass through certain places or at certain times, and arrest suspects, or those posing threat to security or public order as a precautionary measure, authorize investigations about persons and places at any time, and request any person to carry out any action; Monitor all types of messages, telephone calls, and newspapers; • Restrict times for opening public places; • Withdraw licenses to keep arms and ammunition and • Seize every mobile property and impose temporary guardianship on companies. • 237

²³³ For more on this decree and its impact, see Human Rights Watch, Far From Justice: Syria’s Supreme State Security Court (24 February 2009) Doc No 1–56432–434–6. ²³⁴ Syrian Human Rights Committee, Report on the Human Rights Situation in Syria over a 20-Year

Period (1979–1999) (2001). ²³⁵ Ibid 98. ²³⁶ Ibid. ²³⁷ Ibid 99, Article 5.

3 Rights of Minorities 303

Th e decree provided the regime with carte blanche powers to eliminate political opponents and stamp down on every form of dissent. Th ere are questions to be answered as to how such powers could be deemed constitutional; however, inevi- tably, the impact of these powers on rights has been disastrous. Th e comparison of Asad’s regime in Syria to the former Iraqi President Saddam Hussein’s regime is apt:

Th e nature and makeup of the Syrian regime is not known with confi dence. It is part Stalinist, part tribal-sectarian. Fundamentally, it is remarkably similar to the Tikriti edifi ce built by Saddam. It has strengths and weaknesses of sectarian control: the secretiveness, the devotion to the clan, the subordination to the leader, and the brittleness at the centre of it all. Hafi z al-Assad, the shrewd peasant soldier who built this domination and brought the Alawis out of their insularity to their current position of power and material plenty, knew the ways of his region. But to judge by the ongoing performance of Syria in Iraq and Lebanon, his son lacks his subtlety. 238

In justifying the state of emergency operational in Syria at the time of the report, the Syrian government stated in 2004 before the HRC:

Th e State of Emergency Act, which was promulgated in Legislative Decree No. 51 of 22 December 1962, as amended by Legislative Decree No. 1 of 9 March 1963, and which is currently in force in the Syrian Arab Republic, is an exceptional constitutional regime, based on the concept of an imminent threat to the country’s integrity, under which the competent authorities are empowered to take all the measures provided by law to protect the territory, territorial waters and air space of the State, in whole or in part, from the dan- gers arising from external armed aggression by transferring some of the powers of the civil authorities to the military authorities. 239

Th e ‘imminent threat’ is identifi ed by the government as consisting of the aggres- sive acts of Israel and the continued occupation of the Golan Heights. 240 Th e government stressed, however, that such a derogation, as permitted under Article 4 of the ICCPR, did not aff ect constitutional rights of citizens, any of Syria’s international obligations, or the prohibition of ‘any discrimination on grounds of race, colour, gender, language, religion or social origin’. 241 In addition, the gov- ernment argued that the Emergency Act was gradually being revoked. Th us:

. . . it should be noted that, although the Emergency Act remains in force, in actual fact it is virtually in abeyance since it is applied only in a limited number of cases solely involving off ences against the security of the State in keeping with the directives which the President of the Republic announced before the People’s Assembly to the eff ect that this Act should be applied to the minimum extent and with great circumspection. To formalize this posi- tion, Administrative Decree No. 16 of 14 February 2004 was issued to abolish economic

²³⁸ F Ajami, ‘Th e Autumn of the Autocrats’ (2005) 84 Foreign Aff airs 20–35, 32. ²³⁹ State Party Report to the United Nations Human Rights Committee, Syria: Th ird Periodic Report

(19 October 2004) UN Doc CCPR/C/SYR/2004/3, 18 paras 61. ²⁴⁰ Ibid paras 62–3. ²⁴¹ Ibid para 68.

Minority Rights in Syria304

security tribunals which were considered a feature of emergency laws and an example of extraordinary tribunals. 242

Made fi ve years before the Arab Uprising, this statement would not have merited much support among the population. Rather, describing a state of terror that exists within the state caused by fear of security forces’ interference in daily lives, one NGO report states:

Human rights and basic freedoms situation (sic) in Syria have witnessed ongoing serious infractions, violations and other acts of aggression over the past twenty years in light of the Emergency Law, martial rules and ad hoc trials. Such violations showed this regime’s con- tempt for mankind, lack of understanding for human rights and freedoms, and of compli- ance with national legislations, and international agreements on human rights signed by Syria. 243

In examining the human rights situation in Syria, the HRC identifi ed its biggest concern, over the past few decades of scrutiny, as the continuous state of the emergency legislation and the impact of that legislation on society. At the end of the last scrutiny of Syria’s human rights record in 2005, the state of emergency was already nearly 40 years old, and enabled serious human rights violations. While derogations are permitted under the ICCPR, it is incumbent on state parties to explain the provisions being derogated from and to also highlight the necessity of such derogation, neither of which had been done. Th e Committee recommended:

Th e State party, guided by the Committee’s general comment No. 29 (2001) on deroga- tions during a state of emergency (article 4 of the Covenant), should ensure fi rstly that the measures it has taken, in law and practice, to derogate from Covenant rights are strictly required by the exigencies of the situation; secondly, that the rights provided for in article 4 (2) of the Covenant are made non-derogable in law and practice; and thirdly, that States parties are duly informed, as required by article 4 (3) of the Covenant, of the provisions from which it has derogated and the reasons therefore, and of the termination of any par- ticular derogation. 244

Another concern identifi ed was the extent to which Syria appeared to be ruled by law, where law was an instrument that restricted rather than augmented inter- national human rights standards. Th us, in scrutinizing an earlier Syrian state party report, which involved signifi cant description of laws and legal provisions, the HRC found that rather than providing additional safeguards for the human rights and freedoms proclaimed in the Constitution, the laws tended to ‘restrict the scope of application of the Covenant’s provisions’. 245 Th is fi nding was reiter- ated in response to Syria’s report in 2004, with the HRC recommending that:

²⁴² Ibid para 70. ²⁴³ Syrian Human Rights Committee (n 234) para 7. ²⁴⁴ UN Human Rights Committee, Concluding Observations. Syria (9 August 2005) UN Doc

CCPR/CO/84/SYR, para 6. ²⁴⁵ Ibid para 5.

3 Rights of Minorities 305

‘Th e State party should examine all recommendations addressed to it by the Committee and take all necessary steps to ensure that national legislation and its implementation ensure the eff ective enjoyment of all Covenant rights in the State party.’ 246

In addition, the HRC also highlighted that, while there was a surfeit of legislation and legislative bodies throughout Syria, on which the government had reported to the Committee, it was concerned about the lack of independence of these bodies, and, to that end, specifi cally recommended that: ‘Th e State party is encouraged to establish a national human rights institution that complies with the Principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles) (General Assembly resolution 48/134).’ 247

Th is issue was also corroborated by the Syrian Human Rights Commission report:

Human rights violations in Syria have assumed a legislative nature, through departments and courts which were originally set up as exceptions inconsistent with the sovereignty of the Law, but were transformed into permanent establishments and bodies in line with the ongoing state of emergency. Th is repression which takes an institutionalized and methodo- logical form is one of the most serious features of contemporary terrorism, because it has reversed the rules advocated by the international community, and distorted the values of modern civilization. In fact, legislations were tailored to allow for repression contrary to human rights principles formally reinforced within the Constitution, thereby undermining the objective legitimacy of these laws and depriving the ruling regime of its legitimacy. 248

Th e Arab Spring of 2011 provided a number of opportunities for whole-scale change in the rights’ architecture within the region. For Syria, it provides the fi rst real post-colonial opportunity to create an environment that genuinely seeks to respect the aspirations of its population. It is, therefore, likely that the legis- lative framework such as it exists will be overturned. However, any reversal of previous policies would still need to be mindful of existing provisions and their impact, and especially of earlier attempts to forge a strong independent Syria that respected the rights of its communities. Sections 3.2 and 3.3 seek to focus on this, providing the backdrop to law in Syria and its impact on minorities.

3.2 Th e historical and contemporary constitution of the Arab Republic of Syria

Th e process of framing a post-colonial Constitution for Syria began in 1928 in Damascus, with a Constituent Assembly consisting of local delegates and coun- tryside ‘notables’. Th e ensuing years saw signifi cant political jostling as various

²⁴⁶ Ibid para 4. ²⁴⁷ Ibid para 5. ²⁴⁸ Syrian Human Rights Committee (n 234) para 9.

Minority Rights in Syria306

parties sought to lay down roots and gain leverage through such roots. 249 Th e proc- ess of agreeing a fi rst draft was remarkably swift and completed two months after the fi rst meeting, by August 1928. Th is draft is worth dwelling on as a fi rst indi- cation of the ethos of the emerging Syrian state (including Lebanon). Th e Syrian territorial claim to Lebanon is refl ected in Article 2 of the 1928 Constitutional Draft, framed by the Constituent Assembly of Syria. Th is draft article empha- sized Syrian ‘unity’ and independence, considering all the Syrian territories that were part of the Ottoman Empire to be an indivisible entity. 250 Th e article was found unacceptable to the French High Commissioner who omitted it from the Constitution imposed on Syria in 1930. Th e Syrian claim to Lebanon was fi nally resolved by 1936 in a negotiation between the French and the Syrian Chamber of Deputies. 251 France agreed to the annexation of the Druze and Alawi areas, albeit under a special administrative regime, with the Syrian claim to Greater Lebanon dropped. Th e result was the independence and subsequent membership of both Syria and Lebanon into the League of Nations as independent sovereign states. By 1941 the governments offi cially recognized each other, and, by 1944, the Arab states collectively recognized Lebanon through the Alexandria Protocol. 252 Nonetheless, ambiguities and claims between the states have defi ned their rela- tionship since independence.

Th e model envisaged in the original constitutional draft was to constitute Syria as a parliamentary republic with a single chamber, universal franchise exercised in two stages, with four-year terms for the delegates. It is important to note the vision for the President, required to be Muslim, with executive powers for the state to be exercised through a Ministry. Th e contents of the Constitution were progressive: equality was guaranteed to all citizens irrespective of sect, and com- munities’ rights were protected through provisions for religious observation and establishment of community schools. While much of this derived from provi- sions that were well ensconced during the Ottoman period, equal recognition did constitute an explicit guarantee not seen before. Th e draft promised an Electoral Law , with special representation for Syria’s religious minorities. 253 Crucially, it envisaged Syria as one indivisible unit including the Transjordan, Palestine, and Lebanon, and sought to provide the mandate to the incoming independent Syrian government for the organization of armed forces. Th ese special executive

²⁴⁹ Longrigg (n 175) 183. ²⁵⁰ Syrian Human Rights Committee (n 234) 54. ²⁵¹ Th e antecedents to the cementing of this identity is discussed in detail by F Zachs, Th e Making of

a Syrian Identity: Intellectuals and Merchants in Nineteenth Century Beirut (Brill 2005). ²⁵² Th is protocol was signed in the context of the creation of the Arab League, which met on the

28 September 1944 in Alexandria, a meeting with representation from Egypt, Iraq, Syria, Lebanon, Transjordan, Saudi Arabia, and Yemen, with a representative of the Palestinian Arab parties. For more see Hourani (n 40) 303–7. ²⁵³ Longrigg (n 175) 184.

3 Rights of Minorities 307

powers, bestowed on the Presidency, antagonized the French, who saw these roles as their own as long as the Mandate existed. 254

It took two years from the fi rst draft of the Constitution before it fi nally came into eff ect in 1930. In the meantime, Syria was governed by Sheikh Tajak Din under the French Mandate. Further activity towards self-governance was stalled until 1931 when M Jean Helleu, from the French administrative authorities, passed three decrees. Th e fi rst established a Consultative Council to supervise the implementation and realization of the Constitution; a second regulated the ‘provisional organization’ of the Administration, under the High Commissioner; while the third addressed the issue of the much-awaited elections and how they were to be conducted. 255 Th e deliberations in the Consultative Council were tense with many newly established parties jostling for power in negotiation with the authorities. Meanwhile, the French entered negotiations with regard to fi nalizing a treaty to terminate the mandate, and hand over power to Syrians. In the midst of seeking to determine who should negotiate, the authorities passed a decree on the 7 December, which envisioned Parliament as consisting of 70 deputies, the seats to be determined on the basis of religion, with 52 reserved for the Sunni majority, 14 for members of the minorities (further subdivided as three each for the Shi’a and Armenian Orthodox; two for the Greek Orthodox; and one each for Jewish, Isma’ili, Greek Catholic, Syrian Catholic, Armenian Catholic, and Syrian Orthodox populations). A further four seats were reserved for nomadic tribes. 256 Voting began on the 20 December with the secondary elections held in January and, when the fi rst Parliament fi nally convened on the 7 June, the mod- erate parties held sway with 54 seats; there were only 17 seats for Arab nationalist parties across the sectarian divide.

During this period the French appeared wedded to dividing Syria into four territorial units with the Druze and Alawite states forming separate entities alongside Lebanon, leading to signifi cant protest in many parts of the region. Th e heightened tension between the French and the nationalists, who were deter- mined to maintain Syrian unity, 257 was abated in 1936 when a treaty was signed in Paris respecting the territorial integrity of Syria; though this proved a false dawn. In the midst of what was to prove a diffi cult year, the High Commissioner passed legislation seeking to delimit the personal status of minorities; this riled them into opposition and began a separate process of dissent. 258

Th e issue of the personal status of minorities remained high on the negotiation agenda despite its partial modifi cation in November 1938. Th e Sunni Ulemma met in Damascus in 1939, and reiterated Muslim unity, thereby ‘asserting the

²⁵⁴ Ibid. ²⁵⁵ Ibid 190. ²⁵⁶ Ibid. ²⁵⁷ Ibid 193–207. ²⁵⁸ Ibid.

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traditional identity of their community and the State’ and its basic nature. 259 Th e modifi cation of the decree also provided then Syrian Prime Minister, Lutfi Al-Haff ar, with the opportunity to denounce French-made law as invalid, calling for Syrian courts not to give eff ect to such decrees. 260 Th e result was the suspen- sion of the decree on 30 March 1938, bringing the issue to a close.

To understand Syria’s constitutional history, it is important to briefl y men- tion the attempt at creating a unifi ed Arab state, consisting of the three states that are case studies in this book, alongside Egypt. Th e push for a unifi ed state came from forces of Arab nationalism who believed that it was only by adopt- ing an overarching constitutional framework that the communities could be safeguarded. After various contestations, including those concerning the nature of the new state and its leadership, the Declaration of Agreement for Federal Union of the United Arab Republic, Syria and Iraq was passed in Nisan, on 17 April 1963. Th at document identifi ed a framework that ought to be taken into account in the potential framing of any new Syrian constitution. Th e Declaration emphasized a message of unity and specifi cally aimed at the elimi- nation of separatism, with minority identity clearly subject to such strictures. Th us, in one section where the document describes what it considers ‘enemies of the people’, it includes two groups that could ostensibly be aspirants among minority communities:

. . . b) All those tried by the revolution and convicted of being a separatist, a conspirator or a

usurper. and

d) All who worked or work for the purposes of establishing the dominion of classes that abuse society. 261

To further emphasize the drivers of the revolution, the document posited the pre-allocation (reservation) of at least half of the seats in the national parliament for farmers and workers. 262 Th is is interesting in that it gives credence to the argument that the fault-lines in Syria remain more about the rural–urban divide than religious/ethnic identity. Th e non-discrimination clause is one of the rare mentions of other distinctions within the three entities. It includes provisions for the rights of women and is framed as follows:

Citizens have equal rights and duties before the law. Th ere shall be no discrimination between them because of race, origin, language, religion or belief. Women must be equal to men in the exercise of public rights. Th e remnants of the shackles which obstructed the

²⁵⁹ Ibid 235. ²⁶⁰ Ibid. ²⁶¹ Declaration of Agreement for Federal Union of the United Arab Republic, Syria and Iraq (Nisan 17

April 1963) 7. ²⁶² Ibid 8.

3 Rights of Minorities 309

free movement of women must drop so that they may be able to share substantially and positively in the making of life. 263

Despite the goal of eradicating separatism, the document contains a signifi cant reference to religion, attributing religious sentiment as a driver to popular strug- gle, in a region which ‘saw the birth of religions’. 264 Th e document goes on to state that:

It is our fi rm view that religion is one of the fundamental elements on which the Arab society bases its life and future, side by side with all material elements which religion holds. With faith in God and confi dence in themselves, the people will be able to impose their will on life and shape it anew in conformity with their principles and aspirations. 265

While the treatment of religion is explicit, its adherents and diff erences are not made so explicit. Rather, there is a sentiment expressed that seems to treat the religious as a homogenous entity that craves similar aspirations for freedom from imperialism, injustice, and poverty. Th is is seemingly at odds with the subsequent passage in the document, which identifi es the structure of the Federal state and its prerogatives. Consisting of nine points and three additional paragraphs, it is particularly important to highlight points four and six, which state, respectively, that:

Citizens of the Federal State will have one nationality which is the Arab nationality enjoyed by all those enjoying the nationality of member states and its rules will be organized federally. . . . Islam is the religion of the Federation and Arabic its offi cial language. 266

While neither clause is surprising in light of the aims and objectives of the docu- ment and the identity of the majority of the population, such a sentiment would usually be followed by special dispensation given to minorities to practise their own faith, propagate and nurture their language and culture. Th e striking absence of such a sentiment seems to provide the entire document with a majoritarian gloss that avoids rather than engages the question of minorities and the genuine aspirations of the diff erent communities in the three states. Th e principles above are re-articulated in an appendix to the document, entitled ‘State Construction and Constitutional Organizations’, alongside additional articles, one of which states: ‘Th ere shall be one nationality <<Arab>> which shall be governed by fed- eral law.’ 267 Th ere is further evidence of the manifest suppression of minority identities and issues. For instance, in the section entitled ‘Planning of Education, Higher Education and Scientifi c Research’, principle (d) calls for ‘Guarantees for

²⁶³ Ibid. ²⁶⁴ Ibid 11. ²⁶⁵ Ibid 12. ²⁶⁶ Ibid. ²⁶⁷ Ibid Article 10, Appendix I, 23.

Minority Rights in Syria310

unity of thought and unionist Arab national tendencies, and spiritual, scientifi c and moral preparation of rising generations which will build complete unity and establish a free socialist Arab society’. 268 Th e failure of the union to gain any trac- tion ultimately resulted in its short shelf-life.

Many of the same issues came to the fore in the context of constitution draft- ing in 1973 under President Hafi z al-Asad, who had seized power in a coup a few years earlier. Th is draft provoked riots in parts of Syria, on the grounds that the Ba ‛ th movement, avowedly secular in its approach, was deemed godless. Th e lack of specifi c reference to Islam in the Constitution and the failure to consti- tute Syria into a theocratic Muslim state were the key instigators of anger. 269 In response, Hafi z al-Asad modifi ed the Constitution to guarantee that the President is Muslim, and the document was passed with a vote of 97.6 per cent. 270 From a minority rights perspective, this concession to Islam is important; it gave the Alawites greater legitimacy by identifying them with the majority Sunni popula- tion, thus, privileging religious identity over ethnic.

Violence, however, returned to mark Syria’s fi rst elections, held in the after- math of the passage of the Constitution, which returned an overall majority for the National Progressive Front (the Ba ‛ th Party in conjunction with the com- munists and socialists) with 140 seats out of a possible 186. 271 Th e key aspect to this Constitution is that while compromises were made for a Muslim head of state, the Constitution was eff ectively secularist, and, to that extent, was at odds with the history of Syrian communities as presented in sections 1 and 2 of this chapter.

Th e current Constitution of the Syrian Arab Republic was enacted on 13 March 1973 ‘to govern the State and its various institutions, serving as the basis of all legislation’. 272 It comprises a preamble and four chapters: chapter 1 on political, economic, educational, and cultural principles and freedoms, rights, and public duties (Articles 1–49); chapter 2 on the powers of the state, comprising three parts, legislative power, executive authority, and judicial authority (Articles 50–148); chapter 3, on amending the Constitution, made up of one article– Article 149; and chapter 4, on general and transitory provisions, also made up of one article—Article 150. 273 Th e preamble states that the Constitution is based on major principles, notably that freedom is a sacred right, and a citizen’s freedom can be complete only with economic and social liberation. 274

²⁶⁸ Ibid Appendix I, 27. ²⁶⁹ MH Kerr, ‘Hafi z Asad and the Changing Patterns of Syrian Politics’ (1972–1973) 28

International Journal 689–706, 703. ²⁷⁰ Ibid 704. ²⁷¹ Ibid. ²⁷² Syria: Th ird Periodic Report (n 239) 3, para 11. ²⁷³ For more on the Syrian Constitution, as articulated by the government before the Human Rights

Committee see, ibid 4–5, paras 12–23. ²⁷⁴ Syria: Th ird Periodic Report (n 239) 3, para 11.

3 Rights of Minorities 311

Th e Constitution begins by identifying Syria clearly as part of an ‘Arab homeland’, 275 with the opening paragraph focussed on the extent to which the nation would seek to rebuild itself after national cohesion had been weakened by colonial conquest. Th is sentiment is best expressed in the opening line of the preamble, which highlights the role of the Arab nation in building human civilization. 276

Th e theme of ‘unity’ has survived various iterations to be the cornerstone of the contemporary legal landscape, as a bulwark against divisive processes that threaten progress. Th e preamble establishes the goals of the state as ‘unity, free- dom and socialism’, 277 and, specifi cally, delineates the Socialist Arab Ba ‛ th Party as the instrument to forge such unity and pursue those goals. Unsurprisingly, the Constitution voices signifi cant opposition to what is labelled ‘Zionism’, with this phenomenon specifi cally identifi ed among fi ve major principles underpinning the Constitution. Th ese can be paraphrased:

(1) the interconnectedness of the Syrian revolution with a general Arab revolution;

(2) the importance of Arab unity against ‘imperialism and Zionism’; (3) the importance of establishing a socialist order, as ‘a fundamental neces-

sity for mobilizing the potentialities of the Arab masses in their battle with Zionism and imperialism’;

(4) maintenance of the ‘sacred right and popular democracy’; and (5) the interconnectedness between Syrian and global struggles for freedom,

independence, and progress. 278

Th e substantive provisions of the Constitution are contained in the opening two chapters. Th e fi rst, labelled ‘Basic Rights’, identifi es the rights infrastructure within the state. Th e second, ‘Powers of the State’, focuses on the identifi ca- tion and establishment of the key mandates for its governance. Th e fi rst part of chapter one sets out the political principles underlying the state, drawing from sentiments highlighted in the preamble. Th us, Syria is emphasized to be a ‘demo- cratic, popular, socialist and sovereign state’ with its own territorial integrity, 279 whose territory is part of the Arab homeland, 280 and whose people are part of the Arab nation. 281 Th e Constitution specifi es Syria to be part of a republican system, 282 with sovereignty vested in the people. 283 It is instructive to note that Islam is identifi ed as the state religion, 284 with Islamic jurisprudence as its main source of legislation. 285

²⁷⁵ Ibid 4, para 12. ²⁷⁶ Constitution of Syria (1973) Preamble. ²⁷⁷ Ibid. ²⁷⁸ Ibid Principles 1–5. ²⁷⁹ Ibid Article 1(1). ²⁸⁰ Ibid Article 1(2). ²⁸¹ Ibid Article 1(3). ²⁸² Ibid Article 2(1). ²⁸³ Ibid Article 2(2). ²⁸⁴ Ibid Article 3(1). ²⁸⁵ Ibid Article 3(2).

Minority Rights in Syria312

Some suggest that Arab identity is based on adherence to the Arabic language rather than the religion of Islam. 286 In Syria, while identity can be avowedly ‘Arab’, neither in its religious manifestation nor in its linguistic manifestation could such a descriptor provide a completely inclusive identity. In terms of the Constitution, both these facets of identity are clearly demarcated, with Islam as the offi cial religion identifi ed in Article 3, and Arabic established as the offi cial language in Article 4. Th e Constitution also privileges the Ba ‛ th Party, described as ‘the leading party in society’ and attributed with leading a ‘patriotic and progres- sive front’ seeking to unify the peoples’ resources for their benefi t. 287 Chapter 1 also designates the organization of other ‘popular and cooperative organisations’, such as: those working for the development of its members’ interests; 288 ‘People’s councils’ with the mandate for administration; 289 and the armed forces, given the mandate of defending the revolution’s objectives. 290 Th e protests concurrent to the Arab Spring in Syria bring each of these objectives into sharp focus, including the sentiment of Article 12, which states: ‘Th e state is at the people’s service. Its establishment seeks to protect the fundamental rights of the citizens and develop their lives. It also seeks to support the political organizations in order to bring about self-development.’ 291

Th e events leading to the Arab Spring in Syria have refl ected on this principle, deriving sustenance from this explicit call for the state to service its people from the Constitution in much the same way as protestors in Egypt and Tunisia relied on the Constitution to justify protest.

Th ere are a number of provisions in part two of chapter 1 of the Constitution, entitled ‘Economic Principles’, which are important from the perspectives of minorities and other vulnerable groups. First, the designation of Syria as a social- ist state suggests an economically interventionist government, with this seen as a panacea to ‘end all forms of exploitation’ 292 and to achieve ‘economic integration in the Arab homeland’. 293 Unlike other constitutions, the socialist features of the state are visible in the designation of three kinds of ownership: public (including natural resources and public utilities among others); 294 collective 295 (e.g. property belonging to specifi c groups of people such as cooperatives, production units, etc), and individual. 296 Th e article delineating these types of proprietorships also identifi es the duty of citizens to protect and support the fi rst two types of prop- erty while making it clear that individually owned property should not be used in

²⁸⁶ See R Khalidi, Palestinian Identity: Th e Construction of Modern National Consciousness (Columbia University Press 1997) 35–88. ²⁸⁷ Constitution of Syria, Article 8. ²⁸⁸ Ibid Article 9. ²⁸⁹ Ibid Article 10. ²⁹⁰ Ibid Article 11. ²⁹¹ Ibid Article 12. ²⁹² Ibid Article 13(1). ²⁹³ Ibid Article 13(2). ²⁹⁴ Ibid Article 14(1). ²⁹⁵ Ibid Article 14(2). ²⁹⁶ Ibid Article 14(3).

3 Rights of Minorities 313

ways contrary to peoples’ interests. 297 Th e Constitution also sets down clear stric- tures on issues concerning expropriation of properties, including funds, 298 and the holding of agricultural land, 299 and guarantees inheritance rights in accord- ance with law. 300

Th e primary goal of the educational and cultural principles governing the establishment of Syria is identifi ed as the creation of a ‘socialist nationalist Arab generation’ that is ‘scientifi cally minded’ while ‘attached to its history and land, proud of its heritage, and fi lled with the spirit of struggle to achieve its nation’s objectives . . . and to serve humanity and its progress’. 301 While there are signifi cant articulations of the objectives of the state’s educational and cul- tural principles, there is conspicuous absence, in this section, of the rights of the diff erent and diverse communities in Syria to propagate their own cultural values and to have this refl ected in the educational system. Instead, the ethos governing all of part three (Educational and Cultural Principles) is to create a mechanism that will strengthen national identity and empower people to serve the state better.

By far the most important element of the Constitution vis-à-vis human and minority rights is the section entitled ‘Part 4: Freedom, Rights and Duties’. Th is section constituting 24 articles is the nearest equivalent to a Bill of Rights in the Syrian Constitution. Th e articles can be grouped in the following way:

(1) Personal freedoms; (2) Participatory rights; (3) Procedural safeguards; (4) Duties.

Under (a), the rights included are: ‘personal freedom, dignity and equality’, 302 the inviolability of the home, 303 ‘secrecy of communication’, 304 religion, 305 expression, 306 assembly, 307 and organizations. 308 By and large, these rights remain below what could be deemed international benchmarks for such rights. For instance under Article 48, Syrians have ‘the right to establish unionist, social, professional organizations, and productive cooperatives’; however, in addition to the realms of the organizations specifi ed in the text of the article, these are further subject to caveats vis-à-vis the framework for such organizations, their relations and scope. 309

²⁹⁷ Ibid. ²⁹⁸ Ibid Article 15. ²⁹⁹ Ibid Article 16. ³⁰⁰ Ibid Article 17. ³⁰¹ Ibid Article 21. ³⁰² Ibid Article 25. ³⁰³ Ibid Article 31. ³⁰⁴ Ibid Article 32. ³⁰⁵ Ibid Article 35(1). ³⁰⁶ Ibid Article 38. ³⁰⁷ Ibid Article 39. ³⁰⁸ Ibid Article 48. ³⁰⁹ Ibid Article 48.

Minority Rights in Syria314

In terms of (b), the Constitution articulates the following rights: participation, 310 residence, 311 religion, 312 work, 313 free education, 314 citizenship, 315 family, marriage, and children, 316 and women. 317 Under this subheading, the Syrian Constitution provides socio-economic and group rights that are in line with international standards, and, in some instances, such as the right to work, that surpass such standards. In this specifi c context, the Constitution creates an obligation upon the state to provide work for all citizens, guarantees a wage, and fi xes the condi- tions attached to the work. 318

Th e procedural safeguards under (c) are identifi ed as: ‘boundaries of the law’, 319 defence, 320 criminal laws, 321 retroactive laws, 322 residence, 323 and citizenship. 324 Th e rights under this category provide a signifi cant margin of appreciation for the state, and, to that extent, appear easily abrogable. For instance, Article 30, on retrospective laws, states: ‘Laws are binding only following the date of their enactment and cannot be retroactive. In other than penal cases, the contrary may be stipulated.’ 325

Th e inclusion of specifi c duties under the section is also an interesting phe- nomenon. Th e duties specifi ed are not merely those of the individual towards the state, but also those of the state towards the individual. Included among the duties towards the state are those concerning work, 326 defence of the state includ- ing compulsory military service, 327 the payment of taxes, 328 the preservation of unity, 329 and the duties of organizations. 330 Th us, the latter states:

Th e popular organizations by law eff ectively participate in the various sectors and councils to realize the following:

(1) Building the socialist Arab society and defending the system. (2) Planning and guiding of the socialist economy. (3) Development of work conditions, safety, health, culture, and all other aff airs pertain-

ing to the lives of the organization members. (4) Achievement of scientifi c and technical progress and the development of the means of

production. (5) Popular supervision of the machinery of government. 331

³¹⁰ Ibid Article 26. ³¹¹ Ibid Article 33(2). ³¹² Ibid Article 35(2). ³¹³ Ibid Article 36. ³¹⁴ Ibid Article 37. ³¹⁵ Ibid Article 43. ³¹⁶ Ibid Article 44. ³¹⁷ Ibid Article 45. ³¹⁸ Ibid Article 36(1), (2), and (3) respectively. ³¹⁹ Ibid Article 27. ³²⁰ Ibid Article 28. ³²¹ Ibid Article 29. ³²² Ibid Article 30. ³²³ Ibid Article 33(1). ³²⁴ Ibid Article 43. ³²⁵ Ibid Article 30. ³²⁶ Ibid Article 36(1). ³²⁷ Ibid Article 40. ³²⁸ Ibid Article 41. ³²⁹ Ibid Article 42. ³³⁰ Ibid Article 49. ³³¹ Ibid Article 49.

3 Rights of Minorities 315

Part four of the Constitution also identifi es what can be seen as duties that the state bears towards the individual, expressed as ‘guarantees’ in the language of the Constitution. Th is includes ensuring the principle of equal opportunities 332 (including a specifi c provision for women), 333 the provision, guarantee, and supervision of work conditions, 334 and the freedom of the press, of printing, and publication (in accordance with the law). 335 Th ere are two specifi c provisions concerning social security, articulated as ‘insurance, welfare’, 336 and ‘services’. 337 While the former provides state insurance and medical facilities, the latter ‘guar- antees cultural, social, and health services’, promising these services at village level in order ‘to raise its standard’. 338

From the specifi c perspective of minorities, the rights of most interest are: reli- gion, preservation of unity, and organizations. Th e right to religion is articulated as:

(1) Th e freedom of faith is guaranteed. Th e state respects all religions. (2) Th e state guarantees the freedom to hold any religious rites, provided they do not dis-

turb the public order. 339

Syria cannot be classed as a theocratic state and Article 35(1) further ‘guaran- tees’ and respects the freedom of faith. However, in keeping with the history of various sects, and also the earlier discussions concerning the Ismailis during the Ottoman period, the various rites are to be respected only insofar as they ‘do not disturb the public order’. Th e provision on the preservation of unity is framed in a similar vein. As highlighted above, this is a central theme that runs through the Constitution and also fi nds expression in the rights section in part four. 340 Th e provision on organizations is relevant due to the conspicuous absence of ‘religion’ among the host of factors identifi ed as falling within the right to cre- ate such organizations. Th us, while this right extends to ‘unionist, social, pro- fessional organizations and production cooperatives’, there is no right to create an organization based on religious affi liation. While such an organization could come within the provision for ‘social’, it is clear that the fi nal arbitrator of this is the government, as provided by the second element of the article, which states, ‘the framework of the organizations, their relations, and the scope of their work is defi ned by law’. 341 From this, it can be concluded that the rather limited provi- sions of the Constitution are further weakened by the lack of concerted protec- tion for minority communities.

³³² Ibid Article 25(4). ³³³ Ibid Article 45. ³³⁴ Ibid Article 36. ³³⁵ Ibid Article 38. ³³⁶ Ibid Article 46. ³³⁷ Ibid Article 47. ³³⁸ Ibid Article 47. ³³⁹ Ibid Article 35. ³⁴⁰ Ibid Article 42. ³⁴¹ Ibid Article 48.

Minority Rights in Syria316

3.3 Specifi c issues concerning minorities

Having understood the general constitutional framework that governs the state, it is worth briefl y examining a few key themes that particularly aff ect Syria’s minori- ties. With the effi cacy of constitutional governance at a minimum in the context of the workings of the authoritarian state, these themes represent key issues that are likely to become contested in Syria’s immediate future. Th e historical section indicates that this range of issues has had a long legacy in the state and it will, then, be unsurprising to note that special emphasis needs to be paid to the fol- lowing themes: (a) representation; (b) autonomy and local governance; (c) educa- tion and religious identity; and (d) socio-economic rights and the welfare state. It could be argued that each of these themes has been at the heart of the most recent eff orts to overthrow the Syrian dictatorship, but in the context of minorities and their future within the state many of these issues take on a heightened concern.

3.3.1 Representation According to the Syrian Constitution the right to form political parties is con- sidered inviolable. However, this realization is tempered by the Constitution’s emphasis on the need for ‘a National Progressive Front, led by the Arab Baath Socialist Party’, to pursue the following aims:

(a) to mobilize the combined capacities of the masses in furtherance of the objectives of the Arab nation (article 8 of the Constitution);

(b) to liberate the occupied Arab territories; (c) to formulate economic, social, cultural, political, and military plans; (d) to decide on questions of peace and war; (e) to approve the fi ve-year plans, discuss economic policy for the development of the

agricultural sector on which the development of the national economy is based, and promote and develop the cooperative movement;

(f ) to further the cultural, social, and political development of citizens; (g) to complete the establishment of the popular democratic system, with its constitu-

tional institutions and local councils, in order to ensure the full sovereignty of the people;

(h) to further develop the democratic structure of the popular and occupational organiza- tions, provide them with every possible means to play their fundamental role of ensur- ing the people’s control of the various organs of the executive authority, and expand the base of these organizations. 342

Th e fact that the political movement is specifi cally named, and that this ambi- tious governing mandate is then attributed to it, immediately restricts the room

³⁴² Syria: Th ird Periodic Report (n 239) 88–9 para 347.

3 Rights of Minorities 317

available for the expansion of political parties. Th e mandate for political partici- pation in Syria derives from Article 50 of the Constitution and was promulgated as Electoral Law in 1973. 343 Th is law emphasizes the right of Syrian citizens to elect their representatives as well as to contest elections. 344 Th e information about the 8th People’s Assembly elections in 2003 presented by the Syrian Government to the HRC paints a picture that would seem in line with the practice in many fully democratic states. It was reported that 10,405 persons put themselves for- ward in that election with nearly 60 per cent consisting of those that could be classifi ed as representing sector (a), i.e. workers and agricultural labourers. A very small proportion of the overall list of candidates was female (849). Th e country was divided into 15 electoral districts with 10,388 polling stations. 345 According to governmental fi gures, the elections saw a turn-out of nearly 64 per cent of the 7,181,206 persons deemed registered to vote, and they voted for 250 members of the Assembly, of whom 167 members belonged to the National Progressive Front. Th e government was keen to stress that the elections were accessible to all Syrian citizens. It stated:

Th ere is no discriminatory distinction, exclusion, restriction or preference in law, admin- istrative practice or relations between groups or persons. Hence, in Syria, there is no basis for any form of discrimination, exclusion, preference or restriction on grounds of national or ethnic origin, race, colour, birth or gender which would impede the recognition, enjoy- ment or practice of human rights and fundamental freedoms in the political, economic, social or cultural fi elds, in employment or in any other sphere of public life. 346

It is worth highlighting that the National Progressive Front was formed in the early part of 1972, in the immediate aftermath of the ascension to power of Hafi z al-Asad, and comprises a number of diff erent political parties. Describing the Front in its last report, the Syrian government identifi ed these as constituting:

(a) Th e Arab Baath Socialist Party; (b) Th e Syrian Communist Party; (c) Th e Syrian Communist Party (a dissident of the just-mentioned party); (d) Th e Arab Socialist Union Party; (e) Th e Socialist Unionists Party; (f ) Th e Arab Socialist Movement; (g) Th e Arab Socialist Movement (a dissident of the just-mentioned party); (h) Th e Democratic Socialist Unionist Party; (i) Th e Democratic Arab Union. 347

³⁴³ Legislative Decree No 26 of 14 April 1973. ³⁴⁴ For more see Syria: Th ird Periodic Report (n 239) 102–3 paras 388–9. ³⁴⁵ Ibid 105, para 397. ³⁴⁶ Ibid para 399. ³⁴⁷ Ibid 88–9, paras 347–8.

Minority Rights in Syria318

From the perspective of a study on minority rights, it needs to be highlighted that Syria’s electoral system, as derived from the Constitution, is based on a set number of peasants and workers per area and, in this sense, has absolutely no bearing on any sectarian affi liations that may prevail. 348 When taking into account the strong urban–rural divide in the country and the mixing of ethnic and religious com- munities in the urban centres, this makes the Syrian electoral system diff erent from that of Lebanon.

However, Syria’s similarity with Lebanon’s system of personal law is clearly vis- ible in the recognition of the same set of religious courts for the determination of questions concerning religious status, which fi t within the hierarchy of courts in the land. 349 Th e installation of martial law through a state of emergency has seen signifi cant repression of rights and a practical suspension of constitutional guarantees. Despite this, it is important to emphasize that the repression in Syria is not particularly directed at minorities, and in this sense, there has not been a particular pressure for the formation of ethnic/religious identity-based political parties. As Harrington puts it:

None of these laws are directed at religious groups in particular, as the focus of the state is the control of the population as a whole, especially given the status of the ruling Alawi elite as a minority religion within the Syrian Muslim population. Th e state apparatus has made itself into an all-encompassing bureaucracy in order to subjugate the religious and class diff erences that existed from the time of Syrian independence onwards, and has at least facially completed part of its task. 350

As is clear from events concerning the Arab Spring, the question of the rep- resentation of populations in governance structures is likely to be one of the most important in view of the transition being demanded from the ruling Asad regime.

3.3.2 Autonomy and local governance Th e various territorial machinations governing the fi nal boundaries of Syria, and the historical attempts made by France to create four separate territorial units that would be autonomously governed 351 have been referred to in section 1.4 and form an important backdrop to this contemporary question. While it may be simple to look at autonomy regimes in a country where minorities may often live in dis- crete territorial units, the legacy of French interference on this issue, designed as

³⁴⁸ Harrington (n 202) 244, ch 2, pt 1, art 53. ³⁴⁹ Ibid 245. ³⁵⁰ Ibid. ³⁵¹ In the context of its contested frontiers, the Alexandretta dispute needs to be borne in mind. Th is

dispute arose from the imperfect settlement at Lausanne between the Allies and Turkey, similar to the

3 Rights of Minorities 319

a divide-and-rule tactic, means that such questions are caught in a post-colonial bind. Such questions are likely to re-emerge as communities seek to work together in the aftermath of the transition from the rule of President Asad.

On paper, Syria already has an extremely decentralized system of governance. Th e country is divided into 14 governorates, each of which is normally divided into districts that are further sub-divided into sub-districts, with each comprising a number of villages, which are the smallest administrative units. Each governor- ate is headed by a governor, with districts and sub-districts headed by administra- tors, while each village is run by a council headed by a mayor who is in charge of the village and its farm land. Th e governors are appointed by a decree through the executive, while administrators of districts and sub-districts are appointed by the Ministry of the Interior. Mayors are deemed administratively subordinate to the governor but are required to report to the administrator of the sub-district, who reports to the district administrator who in turn reports to the governor. Each governorate is based in the city after which it is named; with the seat of a district lying in the town that bears its name. In total, Syrian local admin- istration consists of these 14 governorate seats, alongside 61 districts and 210 sub-districts. 352

In reporting to the HRC about its obligations under Article 1, on self-determination, the government articulates its regime for local government as contained in the Law of Local Government . 353 Th is document is based on three key principles:

(a) concentration of responsibility in the will of the people; (b) responsibility for economy, culture, and services held by local administration; and (c) process of decentralization. 354

While this document does articulate the responsibilities to be devolved to local governance, it fails to explain the process through which such power may be transferred from central authorities. As a result, the law appears to devolve

Mosul dispute discussed in the context of Iraq. However, while the dispute over Mosul was settled by the League of Nations in 1925 in favour of Iraq (E Kienle, ‘Arab Unity Schemes Revisited: Interest, Identity, and Policy in Syria and Egypt’ (1995) 27 International Journal of Middle Eastern Studies 53–71, 53), the League’s diminished status meant that this dispute was settled by bilateral agreement between France and Turkey in favour of Turkey. Th e appropriateness of any ‘fi nal’ territorial settle- ment, between a mandate power and an independent state raises questions over the legitimacy of such solutions. It also credits sentiment in Syria that objects to the manner in which Greater Syria was reduced to the colonially designed current territorial dimensions. See Khadduri (n 151). ³⁵² Syria: Th ird Periodic Report (n 239) 3, para 9. ³⁵³ Law of Local Government (Legislative Decree No 15 of 11 May 1971). ³⁵⁴ Syria: Th ird Periodic Report (n 239) 13–14, para 38.

Minority Rights in Syria320

responsibility while the rights and mandate for action that ought to accompany remain centralized.

3.3.3 Education and religious identity Th e notion of seeking to reify Syrian identity as Arab, irrespective of the failure of this tag to apply to all Syrians, is refl ected in attempts at unity, but also in the framing of the Constitution and the curricula followed within the educational system. With an emphasis on the creation of an overarching identity that exceeds the geographic parameters of Syria, the narrowness of sectarian identity was easily overcome. Th is was important since any reifi cation of Syria’s traditional identities would have undermined the rise to power of the minority Alawite Asad family. While the state guarantees free education, 355 these welfare arrangements have come under strain since the 1980s due to shrinking state resources, paving the way for a growth in charities. 356 Th ese charities have also been assisted by a relaxa- tion in the norms governing the freedom of association.

Religion and education remain historical bases for identity in Syria. As Peirret and Selvik highlight, the change in attitudes towards education in Syria com- menced from the period immediately following the collapse of the Ottoman Empire. Th e French, as occupiers, brought in a secularized version of education, which led to a counter-reaction often referred to as al-nahda al-–ilmiyya or ‘the awakening of religious knowledge’. Th e movement was led by Muslim clerics who were partial to Sufi sm, and quickly gained the support of urban populations in Damascus and Aleppo. 357

Separate education based on the millets was probably the single biggest fac- tor in the stratifi cation of identity between Muslims and non-Muslims in the Ottoman Empire. 358 Ottoman attempts to modernize their educational system did not prove attractive to minorities, who despite concerted eff orts preferred their own schooling systems. Th e Sultan’s decision to found an Ottoman school in Paris where Ottoman subjects drawn from the diff erent millets could study in a foreign mind-broadening environment, encompasses a signifi cant attempt to include minorities. Th e attraction of a place at the school for minorities was heightened by the promise of employment by the state in positions that minori- ties were previously prohibited from engaging. Twenty-fi ve per cent of the indi- viduals educated at the school from 1857 to 1864 were drawn from minority communities; however, just over 10 per cent were able to secure employment,

³⁵⁵ Article 37, Constitution of Syria, discussed above. ³⁵⁶ T Pierret and K Selvik, ‘Limits of “Authoritarian Upgrading” in Syria: Private Welfare, Islamic

Charities and the Rise of the Zayd Movement’ (2009) 41 International Journal of Middle Eastern Studies 595–614, 596. ³⁵⁷ Ibid 599. ³⁵⁸ Gocek (n 81) 519–21.

3 Rights of Minorities 321

and the idea became less attractive. 359 Minorities remained recalcitrant in seek- ing places at the new westernized Ottoman schools, with writers attributing this recalcitrance to the closed social spaces between communities, built on years of eff ective segregation. 360 Th e idea of attending westernized Ottoman schools was less attractive to minorities who had access to westernized institutions attend- ant to European arrival in Ottoman lands. Although there had been active mis- sionary involvement in the Ottoman Empire, mainly through the provision of educational establishments, these gained in prestige as Western powers began to compete against each other to gain adherents to their own cultures on the ground. Th e mandate to establish missions, churches, and educational establishments was acquired by foreign powers on the grounds of protecting their co-religionists; such mandates were established fi rst by the French, and later this spread to a range of powers including Russia. 361 In time, European powers sought permis- sion from the Ottoman authorities to improve the position of ‘protected minori- ties’ with the result that Western education became widely available to those from minority communities, while Muslims were forced to attend Ottoman schools. 362 Paradoxically, it seemed that minorities were getting educated in greater num- bers, and with a higher quality of education, though this failed to translate into a rise in the job prospects for such minorities in the public sector, explaining the surge of non-Muslim domination over the private sector, especially in commerce. Detailing the impact of Western education on minorities, Gocek states:

Th e large number of foreign and minority schools enabled the Ottoman minorities to gen- erate and regenerate resources within their communities along Western lines. Th e minori- ties acquired, through the emergent system of Western-style education, new insights into their social position within the empire, and demands for autonomy soon followed. ‘Autonomy’ meant something very diff erent to the minorities than it did to the Ottoman state. In defi ning autonomy, the minorities drew on their socially segmented historical past as well as on their Westernized present. Most Ottoman minorities defi ned auton- omy in ‘communal’ terms as the freedom to structure and regulate their relations with the Ottoman society as a whole; initially, this did not necessarily imply political independence from the Ottoman state. 363

Th us, Western education aff orded minorities the opportunity to view their sub- ordinated positions against Western notions of rights, self-determination, and nationalism, leading to an inevitable growth in an aspiration for independence; a claim that was met with the adoption of a uniform national curriculum. One

³⁵⁹ Ibid 522. ³⁶⁰ CV Findley, ‘Th e Acid Test of Ottomanism: Th e Acceptance of Non-Muslims in the Late

Ottoman Bureaucracy’ in Braude and Lewis (eds) (n 7) 339–68. ³⁶¹ Gocek (n 81) 524. ³⁶² For more on education, especially on fi gures concerning minorities’ education and Western

schools see Gocek (n 81) 525ff . ³⁶³ Gocek (n 81) 532–3.

Minority Rights in Syria322

signifi cant contemporary challenge that stems from this reading is the extent to which such aspirations can continue to be so constrained within the territorial parameters of the existing state.

Despite celebrations of the millet system, there have consistently been diffi - culties with how to posit religious autonomy vis-à-vis the delivery of a national curriculum. Th ese diffi culties have been visible, post-Tanzimat Reforms, in the statement of Ahmed Zuhdu Pa Sa, then Ottoman Minister of Education in 1894, who highlighted the diffi culty of incorporating Christian, Jewish, and Armenian minorities into the emerging system of education. His treatise also included a fear ripe among the Ottoman ruling elite that unchecked autonomy of minority schools would encourage political mobilization against the Ottoman state. 364 As Gocek stated, ‘ethnic segmentation determined the structure of the Ottoman social transformation and, in the nineteenth century, further polarized existing social divisions to render . . . political unity impossible’. 365

She argued that Ottoman society was stratifi ed into two groups: the rulers and the subjects, with access to the fi rst class determinable on the basis of religion. As she puts it, ‘being a Muslim was a fi xed requirement for entry to the ranks of the rulers and to the highest echelons of the social system’. 366 She emphasizes this role of religion, drawing it from the Qur’anic statement of the division of humanity into ‘tribes’ and ‘communities’ so that they might be able to recognize each other and so that no human being would be considered superior to another. 367 In discussing the intersection of religion with ethnicity, the author fi nds: ‘religion in the Ottoman Empire also intersected with cultural, historical, and linguistic elements to redefi ne these communities as minorities (vis-à-vis the Ottoman state) and as ethnic groups (with respect to their historical experience and common culture)’. 368

As indicated above in contemporary Syria, the proviso on the freedom of reli- gion is contained in Article 35 of the Constitution. Th is article states:

1. Freedom of belief is inviolable and the State shall respect all religions. 2. Th e State shall guarantee freedom to engage in all religious observances in a manner

consistent with public order. 369

In order to safeguard the rights of all communities to live in harmony, Article 307 of the Penal Code renders any act considered intended to instigate ‘confessional or racial bigotry or provoke confl ict among the various communities and compo- nents of the element of the nation or which results in such instigation or provo- cation’ as deemed punishable by a prison term (6 months to 2 years) or a fi ne (LS100–200). Th rough Article 308 the same penalty is applicable to anyone who

³⁶⁴ Ibid. ³⁶⁵ Ibid 513. ³⁶⁶ Ibid. ³⁶⁷ Ibid. ³⁶⁸ Ibid 514. ³⁶⁹ Article 35, Constitution of Syria.

3 Rights of Minorities 323

is found belonging to associations that have been established for such purposes, with provision also made for the disbanding of such associations. 370 In addition, Article 319 incorporates a penalty of up to one year for anyone who seeks to prevent any Syrian from exercising her/his constitutional right to religion. Th is is also complemented by Articles 462 and 463, which prescribe penalties, directed towards any individual who ‘denigrates religious observances’ or incites others to such denigration. Th e scope of Article 463 also inculcates the destruction, damaging, defacing, desecrating, or defi ling of any place or symbol of religious worship. 371

In providing a modern rationale for the confessional system, the Syrian gov- ernment, stated in 2004:

Th e law does not prohibit any religious community from exercising its own cultural rights, manifesting its religion or using its language. Th e freedom of religious observance that is enjoyed by all religious communities is illustrated by their freedom to conduct their religious aff airs in public and by the fact that they can have their own personal status laws applied by their religious authorities. Th is is in keeping with the religious pluralism of Syrian society, although the Constitution stipulates that the religion of the President of the Republic must be Islam. In fact, Syrians are free to engage or refrain from engaging in their religious observances since there is no authority empowered to compel them to perform such observances. Th is applies to all the religious communities. In accordance with the provisions of the Constitution and the law, the State accords these communities freedom to manifest their religion and to engage in their observances in their respective houses of worship. Th e Syrian legislature recognized freedom of thought, conscience and religion when it promulgated the personal status law to which Muslims are subject in regard to marriage and its eff ects, as well as the personal status laws governing marriage and its eff ects in the case of the numerous Christian communities in Syria and the personal status laws concerning marriage in the Mosaic community. Th ese regulations are respected and pro- tected and each of the said communities has its own courts which hear disputes arising from the application of those laws. 372

In responding to the obligation to report on legislative, judicial, and administra- tive measures to guarantee the freedom of association, the government stressed that Syrian society allowed the freedom of association. In addition, it stated:

All people are equal before the law without any distinction. Th ere is no discrimination among people on any grounds whatsoever such as national, ethnic or social origin, col- our, gender, language, religion, opinion, wealth or lineage, or any other grounds. Being liberal-minded, Syrian society is characterized by the absence of any intolerance. Th e phe- nomenon of discrimination is unknown and alien to Syrian society. Syria is also waging a

³⁷⁰ Syria: Th ird Periodic Report (n 239) 14, para 42. ³⁷¹ Ibid 71, para 289. ³⁷² Ibid 71–2, para 291.

Minority Rights in Syria324

fi erce battle against all manifestations of racism wherever they take place, particularly those manifestations exercised by the Israeli occupation authorities against Arab citizens. 373

Th e contemporary relevance of this discussion in any transition process in Syria is clear. While minorities may be called to unite once more under the banner of Arab nationalism, engendering this process would necessarily need to be accom- panied by concessions made (maintained) in terms of education, religion, and language. While it may be uncontested that the enhanced identity divisions within Syria are the result of concerted French colonial policies of divide and rule, the communities’ aspirations for self-governance have been advanced to a considerable extent, and it is perhaps only through reassurances of autonomy on issues such as religion, language, and education that a united polity may emerge from this transition.

3.3.4 Socio-economic rights and the welfare state As highlighted in section 3.2, the Syrian Constitution visualizes a welfare state with considerable socio-economic guarantees including provision of free educa- tion, medical facilities, and national insurance. After a recent visit to Syria, as part of his duties, the UN Special Rapporteur on the Right to Health, commended the improvements achieved in recent years on issues such as maternal health and child mortality rates, which he suggested would ‘place Syria close to the top of the developing world in terms of health-related achievements’. 374 He also highlighted Syria’s high fertility rate, and what he described as a persistent ‘urban/rural divide’ in delivery of health care services, identifying them as ongoing challenges in real- izing sexual and reproductive rights. 375 One aspect that merited particular com- mendation was the government’s commitment to provide comprehensive health care services for up to 1.5 million Iraqi refugees, particularly in light of resource restraints. 376

Th e Syrian legislative system is also remarkable for a provision it contains with regard to labour rights, drawing on a minimum wage structure fi rst introduced into independent Syria in 1946 through the Labour Code . 377 According to sec- tion 125 of this document: ‘minimum wages shall be fi xed in industry, commerce and liberal professions, and it shall be prohibited to pay workers in any of these

³⁷³ Ibid 80, para 323. ³⁷⁴ See, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attain-

able standard of physical and mental health, Anand Grover (21 March 2011) UN Doc A/HRC/17/25/ Add 3, para 50. ³⁷⁵ Ibid para 37. ³⁷⁶ Ibid paras 55–7. ³⁷⁷ See Labour Code (Law No 279 of 11 June 1946).

3 Rights of Minorities 325

sectors of occupations—except for agricultural occupations—wages below the fi xed minimum’. 378

Th e entire Labour Code was subsequently overwritten in 1959, but section 158 of the new code maintained the same spirit, while insisting that wages be suffi - cient to meet the essential needs of the workers. Th ese ‘essential needs’ were not explained, and the minimum wage remained unspecifi ed. Th e task was entrusted to a district level Minimum Wage Committee, which made its decision based on the directions of the Ministry of Social Aff airs and Labour, 379 which in turn was required to follow the cost of living schedules determined by the Ministry of National Economy. 380

As Atasi refl ects, the determination of minimum wage in Syria was a decentral- ized process until 1959, which was undertaken through fi ve district committees in Damascus, Aleppo, Homs, Hama, and Lattakia. Th is determination took into account the price of labour in terms of any given industry, thereby, undermining the basis of the creation of a uniform minimum wage across industry by privile- ging market forces of supply and demand over questions of basic sustenance. 381 Th e 1959 code contains an aspiration for the creation of a national minimum wage, though the structure tilted towards more local wage-setting committees. While the 1959 Labour Code removed the exclusion for wage setting in agri- culture, Atasi states that agricultural wages remained outside the scope of the committees until 1966 when the fi rst concerted attempts were made to enforce minimum wages in that sector. 382

While the spirit of the law seemed to suggest that workers be paid fair remunera- tion that would allow them the essentials they needed, in practice, the wage-setting boards acted as quasi courts, providing a hearing to employers and workers in any given industry, then deciding what could be considered a fair wage, often adopt- ing a rate halfway between the two sides. Th us, ‘the prevailing rate in the district and the capacity of the undertakings to pay determine almost exclusively the decisions of each committee’. 383 Atasi describes the method of wage setting and the categories of workers that came under its mandate. Using data drawn from the Ministry of Planning, Statistics Division for the period from 1954–1960 and 1960–1965, he documents that about 4,000 job titles, consisting of nearly 60 per cent of salary wage earners in Syria, were grouped into skills categories,

³⁷⁸ Ibid Section 125. ³⁷⁹ Th is body was previously designated as the Directorate of Social Aff airs and Labour. ³⁸⁰ N Atasi, ‘Minimum Wage Fixing and Wage Structure in Syria’ (1968) 98 International Labor

Review 337–54, 338. ³⁸¹ Ibid 339. ³⁸² Ibid. ³⁸³ Ibid 340.

Minority Rights in Syria326

with their minimum wage determined in accordance with their ranking. Th e categories were:

(a) manual occupations (unskilled, semi-skilled, and skilled); (b) clerical, sales, and service occupations; (c) technical, semi-professional, and semi-administrative occupations; (d) professional, executive, and managerial occupations (executives and

directors). 384

One of the most signifi cant threats to the existence of the welfare state is the extent to which such a state would be sustainable outside the parameters of a dictatorship. Globalization and the fi nancial crises have already had an impact on the viability of state fi nances, which have been further depleted by capital fl ight from Syrian banks owing to the uncertainty over the regime’s future. In addition, Syria has been actively seeking membership of the World Trade Organization (WTO), with accession discussions well advanced. Th e government has also been negotiating for some years to obtain an association agreement with the European Union, which would clearly hang in the balance based on how the end-game for the Asad regime is played out. In any case, both measures are expected to have a longer-term positive impact on the agrarian base that remains in place in Syria. However, accession to the WTO will see the reduction of high tariff barriers which, in the short run, is likely to have an adverse impact on many Syrian industrial sectors, causing further unrest among workers. Th e provisions and discussions concerning socio-economic rights would remain of great con- cern to minorities especially in a context where their composition in any new Syrian state is likely to be subservient to the Sunni notables that are economically dominant.

4 Remedies

It is particularly diffi cult at this moment in time to articulate what may be seen as ‘remedies’ in Syria for two particular reasons. First, because at the time of writing it is hard to predict the outcome of what is likely to transpire in the state with the regime of President Bashar al-Asad. All indicators from other instances where such protest has arisen (including Libya, which it could be argued is diff er- ent) suggest that the populations seeking change are unlikely to stop unless they gain major change. In each case, the change sought is centrally around issues of human rights and freedoms but also includes what is seen as the need for a more proactive role in guaranteeing that socio-economic conditions within the state are conducive to sustenance, survival, and growth. Th e response to this quest in Syria is, at the time of writing, being met with greater repression; key concessions have

³⁸⁴ Ibid 343.

4 Remedies 327

not been accepted as adequate. A second reason why it is diffi cult to articulate remedies is the extent to which there remains a genuine desire to forge and main- tain a unitary state. Th e historical trends analysed in this chapter highlight that questions of identity run deep but the extent to which these trends may aff ect the future settlement of the state seem impossible to predict. Notwithstanding these caveats, this fi nal section seeks to identify what remedies ought to be con- sidered from the perspective of the better protection of minorities. It needs to be stated categorically that a rise in the general level of human rights is likely to have a benefi cial impact on minorities; though this is not as obvious a point as it may fi rst seem. Th e extent to which a framework of rights can be put in place that maintains the identity and cultural rights of minorities is likely to present a signifi cant challenge, especially if minorities are viewed as compromising the integrity and unity of the state at a time of great crisis. With these issues in mind this fi nal section identifi es four potential remedies: (i) understanding the dynam- ics of unitary statehood; (ii) upholding human rights; (iii) territorial autonomy; and (iv) strengthening of institutions.

4.1 Understanding the dynamics of unitary statehood

As demonstrated in this chapter, the millet system has a long, entrenched history in the region and has become ingrained in Syria. Under the state of emergency, this system lost some of its potency but this did not lead to signifi cant challenge due to the suppression of any kind of dissent. With the large outpouring of dis- sent from 2011, it is inevitable that the state is likely to change, though it is not as clear as to what direction it may go. From the perspective of minorities, the arrival of less repressive times may engender a push towards calls for a rejuvena- tion of the millet system, on the grounds that it alone can guarantee the auton- omy of various communities that make up the polity. Such a call is likely to have the backing of local community leaders who would once again see a political role for themselves in any new formulations likely to be established. On the face of it, a modern version of the millet system may have positive aspects for the protection of minorities. It would allow communities to continue to live by their own rites, establish some form of limited autonomy over their educational establishments, pursue their religious mores fully and provide opportunities for non-Arab speak- ers to develop their language. Such a manifestation could shore up state stability by ensuring that community representatives were loyal to the state and willing to dampen calls for separatism that could undermine its unity.

On the other hand, the experience of Lebanon suggests that once invoked such formulae are notoriously diffi cult to reign in. Th e fi rst diffi culty that is likely to arise if a Lebanese-style confessional system is activated is the likely impact on the classifi cation of communities. Th e devastation of the Lebanese Civil War should be borne in mind as the ultimate danger of calling for a re-orientation of society on the basis of ethno-religious lines. Such a move is likely to fuel the

Minority Rights in Syria328

agenda of separatists and raise demands within Syria that have long been sup- pressed among various communities. Additionally, it could be argued that the strengthening of the millet system that took place under French colonial rule was mainly a ploy to fragment Syrian society and keep it subjugated. Th is risk of fragmentation is still a potent force and could easily undermine the feasibility of the Syrian state. Th e impact of cross-border communities and ties should also not be underestimated. Many communities in the region have good reason to feel injustice, not least the Kurds, who have been treated unfairly by the British and French and then suppressed under authoritarian governments, unwilling to listen to their claims. However, in addition to the Kurds, there are others includ- ing the Druze, the Shi‛a, the Sunni, and a range of Christians with kin outside Syria in its neighbouring countries, whose diff ering rights’ aspirations have been traditionally repressed. Opening up a discussion on the rejuvenation of the millet system is likely to bring a range of opinions to the fore at a time when the state is least equipped to maintain peace and security. It would probably be equally dan- gerous to campaign for solidarity among particular groups, a simplistic solution suggested by one author. 385

4.2 Upholding human rights

From the perspective of the international community, and especially those who adhere to values of human rights, it would seem that the logical ‘remedy’ in Syria is for the emergence of a state committed to democracy, and its attendant set of values, that is willing to put in place special mechanisms to ensure that the structural schisms between communities that have opened up are closed. Such a vision can only be realized through the instigation of a genuine national dialogue among Syrians. Syria has been in this position before, at the point of transition from French rule. On that occasion, the overarching acceptance of an Arab iden- tity, driven by forces of Arab nationalism that came to the fore, united non-Arab communities to the extent possible. Th e sentiment and expression of Syria as an Arab state has been echoed in many events in the post-independence history of Syria and remains in a prominent place in its Constitution. It would probably be accurate to state that this sentiment is likely to endure through whatever solution materializes in the current Syrian context.

From our perspective, Syria already contains the legislative tools and mechan- isms to forge a human rights-friendly state. It is noteworthy that, unlike many other states, Syria, as a monist state, gives precedence to international law. Th us, the various covenants that the state has acceded to (only relevant in theory to date) have direct eff ect in the Syrian judicial system. In its report to the HRC, the government highlighted that in the event of confl ict between any domestic legis- lation and the provisions of an international treaty to which Syria is a party, the

³⁸⁵ Harrington (n 202).

4 Remedies 329

provisions of the international treaty prevail. 386 Th is position draws from a rul- ing by the Court of Cassation in 1931, which stipulated: ‘No domestic legislative enactment can lay down rules that confl ict with the provisions, or even indirectly aff ect the enforceability, of a prior international treaty.’ 387 Th is understanding was further reinforced in a decision in 1980 by the Civil Chamber of the Court of Cassation . 388 Th is decision highlighted the unitary nature of law specifying that all international treaties are part of Syrian law. It also emphasized that in the event of a confl ict between any international treaty provision and domestic law, courts are required to give weight to the former. As the government has highlighted in its report to the HRC, such a provision derives from Article 25 and Article 311 of the Syrian Civil Code . Article 25 stipulates: ‘Th e provisions of articles that are superseded by, or confl ict with, an international treaty in force in Syria shall cease to apply.’ 389 According to Article 311: ‘Th e above rules [contained in the Code] shall apply without prejudice to the provisions of treaties concluded in this con- nection between Syria and other States.’ 390

Naturally, while adherence to human rights could raise the rights awareness of all citizens, additional attention will still be needed to ensure that everyone can access these rights. Th is is especially true since the only appeal to unifi ca- tion is through a call for Arab nationalism. Responding to such a call for Arab identity requires a degree of maturity, and an understanding of how self-serving it could be for non-Arab minorities. In the past, Syria’s minorities have appeared willing to have the banner of Arab nationalism hoisted above their heads, even participating in it to a certain extent. Such a commitment in the modern context is likely to be rewarded through appreciation by the majority, who are likely to be more amenable to compromises that could be struck towards the specifi c recognition of minority rights. Th e alternative for Syria’s minorities is to risk fragmentation—that would seem an anathema to a society that already accepted signifi cant loss of territory in the aftermath of French rule. As a result, unless backed by the use of superior force such a quest is likely to fail and to set minor- ity rights further back.

Depending on how processes unfold, there may also be an opportunity for the international community to prescribe the protection of minorities and the inclusion of minority provisions as a condition for state recognition, bearing in mind the historical (colonial) antecedents for interventions. Such a process was signifi cant in the transitions attendant to the dissolution of the former

³⁸⁶ Syria: Th ird Periodic Report (n 239) 13–14, para 39. ³⁸⁷ Court of Cassation, Ruling No 23 (1931) as cited in the Syria: Th ird Periodic Report ibid. ³⁸⁸ See Decision No 1905/366 of 21 December 1980, published in (1981) Lawyer’s Journal 305 as

cited in the Syria: Th ird Periodic Report ibid. ³⁸⁹ Article 25, Syrian Civil Code as cited in the Syria: Th ird Periodic Report ibid. ³⁹⁰ Ibid Article 311 (insertion within square brackets by authors).

Minority Rights in Syria330

Yugoslavia, which had a similar cauldron of identities suppressed under relatively authoritarian rule. 391

4.3 Territorial autonomy

Should it prove impossible for the diff erent communities to work together, one possible remedy that may be articulated is for the design of eff ective autonomy measures. Syria’s minorities are relatively territorially concentrated and, alongside the traditional rejuvenation of personal autonomy, there may well be calls for territorial autonomy. Such a discussion would be more diffi cult to imagine in Lebanon where historical conditions have seen the diff erent communities live (albeit in separate villages) right beside each other. Syria, however, would seem to have greater similarities to Iraq with a few prominent communities dominant in particular territories.

Territorial autonomy is often used as a solution where communities, which are geographically concentrated, eff ectively ensure that they are represented in discussions at national level, and determine their own policy at local/regional level. 392 It may prove an attractive option for Syria, though it comes with a few caveats. First, attempts at such autonomy at a time of transition are always dif- fi cult since it means that the community/group with the strongest bargaining power is likely to garner the best possible solution for itself, engendering resent- ment from those with perhaps equally strong cases for such autonomy. Second, it raises questions of identity and potentially sows division at a time when much more is potentially to be gained by communities working together to achieve a common goal. Th ird, such autonomy regimes inevitably privilege two particular kinds of minorities: (a) those that are territorially based; and (b) those that are of a signifi cant size. In Syria, this may not provide for the rights of all, and may risk the possibility of greater fragmentation. One of the traditional diffi culties with territorial autonomy regimes is that they are often seen by their instigators as the penultimate stop on a route to full independence. For those aspiring to state- hood such autonomy regimes, as in the case of the Kurds in Northern Iraq, may provide the best justifi cation for ultimate secession.

4.4 Strengthening institutions

For the Syrian state to emerge as a sustainable entity from the processes that are likely to be unleashed in the quest for stability, the creation and maintenance of democratic institutions is liable to be key. Th e state has traditionally had strong

³⁹¹ For more see, A Pellet, ‘Th e Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-determination of Peoples’ (1992) 3 European Journal of International Law 178–85. ³⁹² See G Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’ (2002) 35

Cornell Journal of International Law 307–53.

4 Remedies 331

institutions, but these have usually been part of the security infrastructure and, to that extent, their strength has centred on their ability to compel citizens to adhere to their diktat . Th is model has come under intense scrutiny across the Arab world since 2011 with the clarity of the protestors most visible in their call for democ- racy. While such calls for democracy could be met through standard processes whereby the majority determines the future of the state, in Syria, with its mix of communities and religions, the creation of strong pro-democracy institutions to guarantee the underlying rights of minorities would be needed. Th is would be equally true in the realm of guaranteeing adequate socio-economic conditions to allow growth for an economy that lags behind its richer Arab counterparts. Th ere is no reason why the Syrian economy cannot attain consistent and stable growth, though it is clear that institutions have a key role to play in harnessing and nurturing any potential growth. 393 Ayres and Macey highlight three specifi c institutional needs:

(1) the ability to create investment vehicles that facilitate risk-taking, such as the corpora- tion and the limited partnership;

(2) the capacity of institutions to adapt to economic and technological advances and changing human preferences and tastes; and

(3) an economic, social, and legal environment that encourages long-term investment, tolerates failure, and facilitates trade. 394

Th e authors argue roadblocks to small business need to be removed and entre- preneurial risk-taking encouraged, believing such processes are likely to depoliti- cize society, leading to a diminution of demand for the services of government bureaucrats, thereby, signifi cantly reducing the capacity of agents to extract bribes from the public and facilitating more eff ective governance. 395 Th is would also allow minorities, who have traditionally relied on small-scale businesses, to return to their position of prominence in the Ottoman heyday. In further examining the question of how growth may be stimulated across the Middle East, Ayres and Macy suggest that the state would need to provide at least three functions:

(1) create a legal environment in which contracts can be freely made and enforced; (2) create and freely permit the use of the various forms of business organization that serve

as the vehicles for investing; and (3) pass laws that permit these business organizations to have distinct legal personalities. 396

³⁹³ I Ayres and JR Macey, ‘Institutional and Evolutionary Failure and Economic Development in the Middle East’ (2005) 30 Yale Journal of International Law 397–430. ³⁹⁴ Ibid 398. ³⁹⁵ Ibid. Th is argument is similar to that made in India with a view to discouraging the

licence-raj. ³⁹⁶ Ibid 407.

Minority Rights in Syria332

Th ey also support the argument that a growing middle class is likely to be entrepreneurial and this, in turn, may defl ect and depoliticize society. 397 As in the case of the argument made by Batatu in the context of Iraq, it may well be the divide between rural and urban, rich and poor that will be the most diffi - cult barrier to overcome in Syria. However, with a strong economy that provides opportunity for growth to all Syrians, it may be possible to dent the potential division that could be sowed through long-honed issues of separate communal and sectarian identities.

Conclusion

Miller’s hypothesis on state-war propensity is relevant for each of our three case studies, each of which feature as case studies in his own analysis. It could be argued that this is also relevant in the context of the states in the Middle East, in general. He argues that:

. . . the key for explaining variations in war-propensity is the state-to-nation balance. Th is balance refers to the extent to which the current political boundaries refl ect the national affi liations and aspirations of the main ethnic and national groups in that state, and the determination of these groups to establish new states or redraw existing boundaries. 398

For Miller, there are two major factors undermining this matrix: state strength and national congruence. Th e former could be measured in terms of durability of the state in the face of internal and external pressures, while the latter appears more as a question of the narrative of the state, and how it is received internally. Both factors are crucial to how Syria has survived, with both our other case stud- ies presenting diff erent combinations of this matrix. What is perhaps most of relevance at this present point in Syria’s history is how it stacks up against these factors. Th e state’s strength appears to be waning, as waves of protest indicate a lack of faith in President Asad and his governance structures. While protesters have raised a number of questions, the discussions are not overtly focussed on issues of religious or ethnic identity, but on the extent to which the state’s narra- tive on socialism has actually delivered remedies to the masses.

In any case, according to Miller:

. . . diff erent combinations of these two factors (strong or weak states which can be either congruent or incongruent) produce diff erent types of war-propensity of states (‘revision- ist’, ‘incoherent/failed’, ‘frontier’, and ‘ status quo ’). Variations in the presence of these types of states exercise major eff ects on regional security and in some cases also on international security. 399

³⁹⁷ Ibid 408. ³⁹⁸ B Miller, ‘Between the Revisionist and the Frontier State: Regional Variations in State-War

Propensity’ (2009) 35 Review of International Studies 85–119, 86. ³⁹⁹ Ibid 86.

Conclusion 333

From one perspective, Syria’s future remains in grave jeopardy. However, when viewed from a broader historical lens, this crisis is not unique. 400 Th e extent to which civil society in Syria, including communities long accustomed to forms of self-governance interspersed with periods of grave repression, can truly function in a democratic context, without undermining the congruence of the state itself, will be the ultimate challenge for whatever form of governance replaces Asad and the Bath’ist regime in Syria.

⁴⁰⁰ Hourani (n 40) 59, 61.

Minority Rights in Lebanon

You have your Lebanon and its problems, and I have my Lebanon and its beauty. You have your Lebanon with all that it has of various interests and concerns, while I have my Lebanon with all that it has of aspirations and dreams . . . Your Lebanon is a political riddle that time attempts to resolve, while my Lebanon is hills rising in awe and majesty towards the blue sky . . . Your Lebanon is ports, industry and commerce, while my Lebanon is a far removed idea, a burning emotion, and an ethereal word whispered by earth into the ear of heaven . . . Your Lebanon is reli- gious sects and parties, while my Lebanon is youngsters climbing rocks, running with rivulets and playing ball in open squares. Your Lebanon is speeches, lectures and discussions, while my Lebanon is songs of nightingales, swaying branches of oak and poplar, and echoes of shepherd fl utes reverberating in caves and grottoes . 1

Introduction

Although the historical formation of Lebanon is rather unexceptional, shar- ing much of the same colonial baggage as other states in the region, it is when we turn to the ‘particular forms of Lebanese nationhood’ 2 that the question of minority rights and the ‘secularization’ of the state system becomes compelling. As detailed in earlier cases, part of a nation-building process often entails crafting a ‘consensus . . . of the past’ through the establishment of ‘a set of foundational myths’. 3 When applied to Lebanon, this has particular resonance as foundational myths are found in a number of discourses and are most evident when examining the historiography of sectarianism.

Th e tension between sectarianism and modernity captures ‘a dilemma of recuperating an autonomous national history through a teleological discourse of progress’. 4 Th at sectarianism is a part of Lebanese history is clear, but in

¹ Original version found in A/-Majm,u’ah al-Kdmilah li Mu’allafdt Gibrdn Khalil Gibrdn , Vol III (Beirut 1949–1950) 202–3 translated and reprinted into English in N Naimy, ‘Th e Mind and Th ought of Khalil Gibran’ (1979) 5 Journal of Arabic Literature 55–71, 59.

² M Weiss, ‘Th e Historiography of Sectarianism in Lebanon’ (2009) 7(1) History Compass 141– 54, 148.

³ E Davis, Memories of State: Politics, History and Identity in Modern Iraq (University of California Press 2005) 2.

⁴ U Makdisi, ‘After 1860: Debating Religion, Reform, and Nationalism in the Ottoman Empire’ (2002) 34 International Journal of Middle East Studies 601–17, 614.

Introduction 335

interpreting its meaning, historians, legal scholars, and other writers off er a mul- tiplicity of readings of sectarianism that have shifted and changed over time. In its darker shades, sectarianism has been understood as primordial, invented, or simply as a cultural failing. 5 Yet as part of the national project, sectarianism became the foundation upon which Lebanon was built (a state comprised of ‘many ta’ifas’) 6 and remains, as Makdisi argues, a part of the Lebanese present, doggedly refusing to submit to the ‘executioner’s scaff old’. 7

In refl ecting on the meaning of sectarianism in the Lebanese context, it is necessary to distil realities from mythmaking. Th e colonial mythmaking of a ‘territorial unifi ed Lebanon as a nation-state’ rested upon another foundational myth: Lebanon as a secular and tolerant society. Historiographies on Lebanon often describe Mount Lebanon as a haven for persecuted groups elsewhere in the region from the seventh century onward. 8 Current narratives 9 replicate this notion of a ‘centuries-old heritage as a place of refuge for those fl eeing religious intolerance’. 10 Yet such an image sits uneasily with Lebanon’s colonial past and fractured present. 11 As Rowe argues, Lebanon ‘was eff ectively created for the Christians by the French colonial mandate’. 12 Th e confessional system that fol- lowed under the unwritten 1943 National Pact, ‘privilige[d] the Christian popu- lation’ 13 and created a political system that was secular and sectarian. Th e idea of Lebanon as a ‘minority rights model’ owes much to this confessional (sectarian) system, which has rooted identity politics in Lebanon. Although this system has endured, 14 it is as much to do with the entrepreneurial power of elites within sectarian communities as with the utility of the system itself.

⁵ Weiss (n 2) 142. ⁶ U Makdisi, ‘Th e Modernity of Sectarianism in Lebanon’ (1996) 200 Middle East Report

Minorities in the Middle East: Power and the Politics of Diff erence, 23–30, 25. ⁷ Ibid 26. ⁸ See, EM Koury, Th e Crisis in the Lebanese System: Confessionalism and Chaos (Foreign Aff airs

Study 1976). Th is reading of the history of the region is challenged in Makdisi’s seminal study, which details the sectarian confl icts between the Maronite and Druze communities in Mount Lebanon during the mid-nineteenth century. U Makdisi, Th e Culture of Sectarianism: Community, History, and Violence in Nineteenth-Century Ottoman Lebanon (University of California Press 2000).

⁹ See, for example, J Rehman, ‘Accommodating Religious Identities in an Islamic State: International Law, Freedom of Religion and the Rights of Religious Minorities’ (2000) 7 International Journal on Minority and Group Rights 139, 152.

¹⁰ See United States Department of State, International Religious Freedom Report: Lebanon (13 September 2011) 1.

¹¹ Like Iraq, Lebanon fi ts the classical paradigm of a ‘severely fractured state’, defi ned by Reilly as ‘ethnically diverse and where ethnicity is a politically salient cleavage around which interests are organized for political purposes such as elections’. See B Reilly, Democracy in Divided Societies: Electoral Engineering for Confl ict Management (Cambridge University Press 2001) 4.

¹² P Rowe, ‘Th e Sheep and the Goats? Christian Groups in Lebanon and Egypt’ in M Shatzmiller (ed), Nationalism and Minority Identities in Islamic Societies (McGill-Queens University Press 2005) 85–107, 94.

¹³ Ibid. Top political posts were based on religious sect and freezing parliament representation on a 6–5, Christian to Muslim ratio, which was derived from a questionable 1932 census.

¹⁴ Albeit with legal power redistributed after the 1989 Ta’if agreement; the contents of which we will examine later in this chapter.

Minority Rights in Lebanon336

Lebanon’s confessional arrangements represent the modern legacy of the Ottoman millet system for the autonomy of minorities. 15 Ostensibly under- pinned by notions of inclusiveness and plurality, 16 the system was the result of an inter-sectarian bargain struck between elite representatives of Lebanon’s minority communities. It was fi rst established by the French in the 1920s and was anchored in Lebanon’s political system under the National Pact ( mithaq al-watani ) of 1943. Th is confessional and consociational arrangement is analysed in greater detail later in this chapter, but it is worth noting here that under the system, groups were allowed to develop their identities further, and were able to retain their customs and practices with a degree of autonomy characteristic of Ottoman rule. 17 Th is created strong community-oriented identities that were externally guaranteed and legitimized throughout the Ottoman period, and sub- sequently through French colonial rule. Against this backdrop, it is unsurprising to fi nd that the sectarian–secular system in Lebanon is both a model of minority rights protection and a catalyst for sectarian confl ict.

Th e reality of Lebanon’s fractured landscape rubs up against the Lebanese nationalist project, which seeks to create ‘a nationalist discourse of progress’ imagining as its ‘source of identity and tradition [a legacy of ] coexistence and toleration’. 18 From the Ottoman to the colonial period, there was frequent intra- and inter-communal strife. In the post-independence period, Lebanon experi- enced confl ict in 1958, and a particularly brutal and protracted civil war from 1975–1990. In the wake of the Lebanese civil war, ‘the main approach of Lebanon’s ruling elite was to produce an image of integration that would facilitate accept- ance of the new order’. 19 Creating this image required historical amnesia and the creation of a ‘myth [that] simply held that there had been no civil war in Lebanon but, to quote President Elias Hrawi, “only a war of others on our territory”’. 20 Yet Lebanon’s civil war 21 was a complex story that ‘spiralled through a number of

¹⁵ For more on the Ottoman system, especially focussing on the millet system, see R Davison, Reform In Th e Ottoman Empire, 1856–1916 (Gordian Press 1963).

¹⁶ For a general reading on this question and by way of background material for this chapter, see F Traboulsi, A History of Modern Lebanon (Pluto Press 2007); K Salibi, A House of Many Mansions: Th e History of Lebanon Reconsidered (IB Taurus 2009); R Fisk, Pity the Nation: Th e Abduction of Lebanon (4th edn, Th under’s Mouth Press/Nation Books 2002); Weiss (n 2); C Mallat, ‘Th e Lebanese Legal System’ Th e Lebanon Report No 2, Summer 1997, 29–35; DD Grafton, Th e Christians of Lebanon: Political Rights in Islamic Law (IB Taurus 1998); EA Salem, Violence and Diplomacy in Lebanon: Th e Troubled Years 1982–1988 (IB Taurus 1995); A Adib-Moghaddam, Th e International Politics of the Persian Gulf: A Cultural Genealogy (Routledge 2006); W Phares, Lebanese Christian Nationalism: Th e Rise and Fall of an Ethnic Resistance (Lynne Rienner 1995).

¹⁷ Th ese strong identities continue to clash in a more general Middle Eastern confl ict. For more, see PA Wee, Th e Crisis in Interfaith Relations in the Middle East (United States Institute of Peace 2007).

¹⁸ Makdisi (n 4) 614. ¹⁹ V Perthes, ‘Myths and Money: Four Years of Hariri and Lebanon’s Preparation for a New Middle

East’ (1997) 203 Middle East Report , Lebanon and Syria: Th e Geopolitics of Change 16–21, 19. ²⁰ Ibid. ²¹ For a detailed insight into the civil war, see Fisk (n 16). For earlier versions of ethnic strife in

Lebanon see FI Qubain, Crisis in Lebanon (Th e Middle East Institute 1961).

Introduction 337

phases’; in the early stages it was a ‘mainly Lebanese aff air, with battles between the militias of the Lebanese Front and the National Movement’. 22 Over time the power struggles became inter-group—with Arab nationalist and leftists on the one side and right-wing pro-US and Israel-allied forces on the other, as well as intra-group, with clashes within as well as between sectarian groupings. 23

Th ere are also other factors that disrupt identity-crafting in Lebanon, which extend beyond contestations over how to interpret and understand sectarianism in contemporary Lebanon. Amongst these are Lebanon’s inextricable link to the Israeli–Arab and Israeli–Palestinian confl icts, 24 as the 2006 Israeli attacks against Hizbollah in Southern Lebanon so visibly demonstrated. 25 Lebanon’s other shared and contested border with Syria is rooted in the Ottoman period, 26 and remains a backdrop to Syrian interests and views of Lebanon. 27 A third factor is the simi- larities or ‘kinship’ between groups in Lebanon and Syria, a factor that fi ts this case within the broader context of cross-border minorities that extend into Syria and Iraq. 28 Th ese realities impact signifi cantly on the Lebanese nation-building project and on the ability to re-imagine sectarianism as part of, not in contest with, the restructuring of state.

As we turn to the task at hand, that is to examine the minority rights project in Lebanon, we are mindful of the complexity of Lebanon’s historical social forma- tion and the dilemmas that confront what Makdisi has suggested is a ‘secularist academic historiography that has been unable or unwilling to come to terms with the signifi cance and implications of sectarianism for and in modernity’. 29 Also, like in Iraq and Syria, the historical and political project of nation-building in Lebanon is incomplete, and an accepted model of political community has yet to emerge. Th erefore, in Lebanon, as in the discussion on Iraq, history must be understood as a hegemonic technique; ‘an important tool for political elites to enhance their legitimacy and control’. 30 Against this backdrop, this chapter

²² B Edwards, Contemporary Politics in the Middle East (Polity 2008) 123. ²³ One of the most violent phases of the civil war (aside from the Israeli invasion) occurred in

clashes within and not between groups (i.e. Maronite Christians against other Maronite Christians and Shi ‛ a Muslims against Shi ‛ a Muslims).

²⁴ For a study of the impact of two powerful states, Syria and Israel, on Lebanon, see RG Rabil, Embattled Neighbors: Syria, Israel and Lebanon (Lynne Rienner 2003). Also, in this context, see M Deeb, Syria’s Terrorist War on Lebanon and the Peace Process (Palgrave Macmillan 2003).

²⁵ See AR Norton, Hezbollah (Princeton University Press 2007). ²⁶ For the inter-linkages between the Syrian and Lebanese populations, see NJ Weinberger,

Syrian Intervention in Lebanon: Th e 1975–76 Civil War (Oxford University Press 1986). Also, see J Castellino, ‘R2P & Kinship in the Context of Syria and Lebanon’ in W Kemp, V Popovski, and R Th akur (eds), Th e Responsibility to Protect & Kin States (United Nations University Press 2010).

²⁷ For a discussion of the notion of the post-colonial dimensions of the state in the context of national self-determination, see J Castellino and S Allen, ‘Th e Doctrine of Uti Possidetis and Crystallisation of Modern Identity’ (2001) 43 German Yearbook of International Law 205–26.

²⁸ Th ese issues are explored more in the context of what are commonly known in minority rights literature as ‘Kin States’. See Th akur et al (n 26).

²⁹ Makdisi (n 4) 614–15. ³⁰ Davis (n 3) 1.

Minority Rights in Lebanon338

focusses on the sectarian–secular system in Lebanon and its impact on minor- ity communities by examining the confessional system in Lebanon, something Weiss has accurately characterized as a model of ‘political or social engineering’ used to address the ‘malady of intercommunal strife and division’. 31

1 Th e Unwanted Past

Th e Fertile Crescent and its environs were among the earliest sites for ancient civilization. 32 Th at this region provided fertile ground for the fl ourishing of empire has been the subject of a number of studies. 33 Th e area that is currently Lebanon was designated al-Sham (or Greater Syria) and was part of the Islamic Umayyad Empire until 750 ad . 34 In the period preceding the Ottomans the region included Syria, Jordan, and Israel besides Lebanon, with Damascus serv- ing as the ancient capital for the Umayyads. 35 Th e Ottomans under Sultan Selim I (1516) conquered the region and divided it into administrative units called vilayets with provincial pashas or walis in constant competition under a relatively federalist structure. 36 Th e empire was divided into three provinces: Damascus, Aleppo, and Tripoli with a fourth province of Sidon (later called Beirut, and which subsequently became Lebanon, with territorial adjustments made by the French). 37

Two successive generations of Lebanese rulers (Hakims) stressed their inde- pendence under the Ottomans, arguing that the mountainous region had to be treated diff erently from the plains. 38 Bashir II (1788–1840) of the Shihabi dynasty managed to gain exclusive jurisdiction over Mount Lebanon and also incorporated some coastal towns into his territory, despite objections from Damascus. 39 Towards the end of the Shilabi dynasty, much of the region came under Egyptian rule (1832–1840), though Ottoman control was restored over Syria and Lebanon, with the creation of new administrative divisions across the region. Th e territory of Mount Lebanon was included within these new divisions,

³¹ Weiss (n 2) 151. ³² For a historical oversight of law in the Fertile Crescent, see R Westbrook (ed), A History of Ancient

Near Eastern Law , vol 1 (Brill 2003). ³³ JM Diamond, Guns, Germs and Steel: Th e Fates of Human Societies (WW Norton 1997). ³⁴ For general reading, see GR Hawting, Th e First Dynasty of Islam: Th e Umayyad Caliphate AD

661–750 (2nd edn, Routledge 2000). ³⁵ See R Irwin, ‘Gunpowder and Firearms in the Mamluk Sultanate Reconsidered’ in M Winter

and A Levanoni (eds), Th e Mamluks in Egyltian and Syrian Politics and Society (Brill 2004) 117–41, 133.

³⁶ For the general context in which this occurred, see K Barkey, Bandits and Bureaucrats: Th e Ottoman Route to State Centralization (Cornell University Press 1994) 44–8.

³⁷ See M Ma’oz, Ottoman Reform in Syria and Palestine, 1840–1861 (Clarendon Press 1968) 31–2.

³⁸ For more see C Winslow, Lebanon: War and Politics in a Fragmented Society (Routledge 1996) 20–4.

³⁹ P Hitti, History of Syria, Including Lebanon and Palestine (Macmillan 1951) 679–84.

1 Th e Unwanted Past 339

though it was further sub-divided into two distinct districts. One of these was governed by Maronite Christians and the other by the Druze. Th us the sectar- ian division of Lebanon was underway, accompanied by the emergence of a social structure referred to as the ‘confessional system’, (common to Syria and Lebanon), motivated by the drive to maintain protection of religious minorities.

During the Ottoman regime, Mount Lebanon, the mountainous territorial base that underlies the Lebanese state, was considered an integral part of Greater Syria, with questions still remaining as to its status when the French took on the mandate for the region in 1920. 40 It was fi nally resolved through French administrative law in favour of Lebanon, with Syria initially refusing to engage in diplomatic relations with the new state. 41

Th e active role of the Maronite Church attracted Maronite and Christian migration to Mount Lebanon as early as the seventh century, 42 and this, in turn, had a mirror eff ect in the Druze community, which began to mobilize in a bid to counteract the spread of Maronite infl uence in the mountain region. 43 Th e communities lived in relative harmony with signifi cant peaceful interaction throughout the years. While confl ict did occasionally break out, this was usually contained to localized skirmishes. However, with grievances being nurtured in tight communities, often supplemented by appeals to various outside sources, antagonism between communities grew. 44 Th e result was signifi cant sectarian strife between communities under the early Ottoman period in 1820 and the1840s. 45 In response, the Ottomans divided the Mountain into two administrative regions ( kaymakate ) with the Beirut–Damascus road bisecting the northern Maronite zone and the southern Druze zone, 46 a solution always likely to be contentious since the communities lived interspersed among each other. Unsurprisingly, this led to an increase in outbreaks of violence. Th e Ottomans once again intervened, sending in battalions commanded with the task of disarming local militias and restoring peace. It could be argued that this was the fi rst real ‘intervention’, though the Mountain was considered part of the Ottoman Empire at the time, there remained questions about its status in the eyes of local militia. 47

⁴⁰ For a detailed account of the process and events leading up to this, see SH Longrigg, Syria and Lebanon under French Mandate (Oxford University Press 1958) 61–108.

⁴¹ Ibid 199–207. ⁴² See Weinberger (n 26) 36; also see A Hourani, ‘Race, Religion, and Nation-State in the Near

East’ in A Lutfi yya and C Churchill (eds), Readings in Arab Middle Eastern Societies and Cultures (Mouton 1970) 1–4.

⁴³ See WR Polk, Th e Opening of South Lebanon, 1788–1840: A Study of the Impact of the West on the Middle East (Harvard University Press 1963) 125–40.

⁴⁴ Ibid 125–6. ⁴⁵ See C Farah, Th e Politics of Interventionism in Ottoman Lebanon, 1831–1861 (Centre for

Lebanese Studies, IB Taurus 2000). ⁴⁶ See PK Hitti, Lebanon in History from the Earliest Times to the Present (Macmillan Company

1962) 357–70. ⁴⁷ S Khalaf, Civil and Uncivil Violence in Lebanon: A History of the Internationalization of Communal

Contact (Columbia University Press 2002) 62–102.

Minority Rights in Lebanon340

By 1845 a new administrative scheme had been introduced in the form of a council within each of the two zones that had representatives from all the com- munal groups and not only the Maronites and the Druze. 48 Th is system brought the Mountain region in line with Syrian administration, where this genre of consultative councils ( meclis ) had been functioning with a degree of success. 49 Th e Ottoman intervention in 1845 succeeded in restoring an uneasy peace and brought about unifi cation in the systems of governance in Lebanon and Syria. 50 Th e measures had partial success in subduing sectarian tensions that, nonetheless, continued at a lower intensity throughout the rest of the century. One particular episode in this history concerned the refusal by Damascene Christians to pay conscription tax on the grounds that such a tax was not being charged of their kin communities in the mountains. 51 Th is led to resentment among the Muslims on both sides of the border and sparked further tension. Showing the kinships that exist between the two regions, Weinberger recounts:

Signifi cant transnational linkages surfaced in the outbreak of violence in the Mountain and Damascus. With the controversy over the conscription tax still unresolved, rumours reached Damascus in June 1860 that Christians in Lebanon were being massacred by Druze with government backing. Ahmed Pasha made no eff ort to halt the fl ow of men and arms from Jabal Duruz and Damascus to assist the Lebanese Druze. Nor did he pre- vent groups of Druze from both the Mountain and Hawran from entering Damascus and inciting Muslims against Christians. When attacks against Christians were begun by an angry crowd, composed primarily of Damascene Muslims, the vali refrained from using his troops to protect the Christians. Ahmed Pasha was subsequently executed by order of the Porte for his role in the Damascus massacres. 52

Th e tensions ultimately led to European intervention, with collective pressure brought to bear upon the Ottoman authorities to reconfi gure the administrative arrangements in order to facilitate better representation. 53 However, each of the European states had diff erent national interests with the traditional French sup- port for the Maronites countered by Russian support for Orthodox communities and British support for the Druze. 54

⁴⁸ Weinberger (n 26) 39–40. ⁴⁹ Ibid 64–70. ⁵⁰ For more on the Ottoman intervention in 1845, see B Labaki, ‘Th e Christian Communities

and the Economic and Social Situation in Lebanon’ in A Pacini (ed), Christian Communities in the Arab Middle East: Th e Challenge of the Future (Clarendon Press 1998) 222–58, 235. Th is article also contains lists of demographic data that may be of some interest.

⁵¹ Weinberger (n 26) 41. ⁵² Ibid 36. ⁵³ See D Goff man, Th e Ottoman Empire and Early Modern Europe (Cambridge University Press

2002) 192–234. ⁵⁴ To understand the context of diff erentiated European interests in the Ottoman Empire, see KH

Karpat, Th e Politicization of Islam: Reconstructing Identity, State, Faith, and Community in the Late Ottoman State (Oxford University Press 2000) 208–22.

1 Th e Unwanted Past 341

Concerned about the situation, the concert of powers created a commission to inquire into the 1860 massacres, 55 resulting in the recommendation of the Organic Statute of 1861, 56 which defi ned the Mountain as an autonomous region ( sanjaq ). Th e newly appointed governor, a non-Lebanese Ottoman Christian, was charged with the role of moving the region towards broader representation. He was assisted by a central Administrative Council, based on a complex formula of proportional representation on the basis of the confessional system. 57 Th e for- mula, based on population sizes of the diff erent sects, yielded diff erent numbers of seats for the Maronite, Druze, Greek Orthodox, Greek Catholic, Shi ‛ a, and Sunni Muslim communities. Th us, according to the system, each representative on a governmental body was in fact a trustee of the interests of their respective communities. 58

Th e success of the system and the Organic Statute is refl ected in the relative tranquillity experienced in the aftermath of its introduction, until 1915, when it was revoked by the Ottomans under shadow of the threat of World War I, with Lebanon absorbed back into the provincial system existing for the rest of the Empire. 59 Th e subsequent defeat of the Ottomans in the war reopened the door on administrative arrangements for the territory, with the region carved between Britain and France through the secret Sykes–Picot Agreement of 1916. 60 In keeping with the Wilsonian vision of self-determination, 61 a Commission (King-Crane) sought to determine the aspirations of the population. 62 A man- date for Syria and Lebanon was created and attributed to France in 1920, a deci- sion confi rmed by the League of Nations in July 1922. 63

Under the French mandate, Lebanon’s territory was augmented with the addi- tion of coastal regions and parts of the Beqa ‛ Valley. 64 With each region added, the demographics of the country changed dramatically. Th e Maronites, formerly comprising nearly 60 per cent of the population in the Mountain region, were reduced to a minority (albeit the largest such minority) of 29 per cent in Greater

⁵⁵ For more on this, see Makdisi (n 4) 601–17. ⁵⁶ For a brief discussion of this document and its impact, see KH Karpat, Studies on Ottoman Social

and Political History: Selected Articles and Essays (Brill 2002) 407–10. ⁵⁷ Ibid. ⁵⁸ Weinberger (n 26) 45. ⁵⁹ See Longrigg (n 40) 293–333. ⁶⁰ Th is is discussed in the context of Palestine by G Biger, Th e Boundaries of Modern Palestine

1840–1947 (Routledge 2004). ⁶¹ See AA Whelan, ‘Wilsonian Self-determination and the Versailles Settlement’ (2004) 43(1)

International & Comparative Law Quarterly 99–115. ⁶² HN Howard, Th e King-Crane Commission: An American Inquiry in the Middle East (Khayats

1963). ⁶³ Britain was awarded the mandate for Palestine and Iraq. For more on this issue, see M Kent, Th e

Great Powers and the End of the Ottoman Empire (Frank Cass 1996). ⁶⁴ Longrigg (n 40) 356–68. Th e original French mandate is reproduced in this volume as Appendix

D, 376–80.

Minority Rights in Lebanon342

Lebanon. 65 Th e Maronites argued for Greater Lebanon despite their subsequent diminution in the population because they were keen to gain independence from Syria and appeared confi dent that their interests in the consolidated state would be protected by the French. 66 As well, this larger state, with the coastal areas, was also seen as economically more viable.

Th e idea of Greater Lebanon, however, was not supported by all groups. Th is was especially true for Sunni Muslims, who were set to lose their status as part of the majority population of Greater Syria, while other communities remained determined not to let French self-interests govern the future of Middle Eastern communities. French interests in ensuring a Christian state in a Muslim region remained a signifi cant factor in encouraging divisions spurred by the traditional promises made by the French monarch to the Maronite community. 67 Smaller sects generally preferred to see a united, independent Lebanon–Syria as they were uncertain as to how French interests would provide them specifi c protection. Within the Syrian part of the French mandate, the Syrian nationalist movement had begun to mobilize in the spirit of Arab nationalism, enraged both by what they considered an attempt to partition Syria, and by already having to relinquish a part of Palestine to the British mandate, which was considered part of the greater Syrian state. Th e French were unwilling to acquiesce to Syrian aspirations and, in addition to expanding the territorial dimensions of Lebanon, also engaged in the politics of divide and rule. By 1922, they had designated separate Alawi and Druze ‘States’ (administrative units), under the banner of minority protection. 68 Th roughout these developments, the special status of Christians in the Mount Lebanon region in 1861 enabled these communities to forge their identities on religious lines and to aspire for a Christian state in the Middle East. 69

As Makdisi has argued, sectarianism in Lebanon is rooted not in ancient history but in the governing politics and discourses of the [French] colonial regime that were appropriated by the nationalists to legitimate specifi c paths of elitist development. Ottoman reform and European colonial interests gave birth to sectarian politics in Mount Lebanon; a process that was ‘communally reinvented in the sense that a public and political sectarian identity replaced a non-sectarian politics of notability that had been the hallmark of prereform society’. 70 Sectarianism became institutionalized in twentieth-century Lebanon.

⁶⁵ Weinberger (n 26) 46. ⁶⁶ See AJ Abraham, ‘Lebanon the Crucible’ (2007) 24(2) Th ird World Studies 225–7. ⁶⁷ Th e Promise of St Louis of France to the Maronites was renewed in 1649 by Louis XIV and in

1737 by Louis XV through a communiqu é issued to the Maronite Patriarch of Antioch addressed to the Maronite nation in general. General background information on St Louis and the Treaty can be found on the website of the Encyclopaedia Britannica at: <http://original.britannica.com/eb/top- ic-348849/Louis-IX> accessed 21 October 2010 (subscription required).

⁶⁸ B White, ‘Th e Nation-State Form and the Emergence of “Minorities” in Syria’ (2007) 7(1) Studies in Ethnicity and Nationalism 64–85, 68.

⁶⁹ B Masters, Christians and Jews in the Ottoman Arab World (Cambridge University Press 2001) 152.

⁷⁰ Makdisi (n 6) 68.

http://original.britannica.com/eb/topic-348849/Louis-IX

1 Th e Unwanted Past 343

Whilst independence was achieved in 1943, the state was wrapped in contradic- tions. Distinct from other post-colonial states, Lebanon emerged as ‘a result of a series of compromises between the French mandatory power and the indigenous elites, and not as the result of popular anti-colonial mobilization’. 71 And whilst it was ‘established as liberal and (putatively) democratic’, 72 it was not secular. Th erein lies ‘the unutterable contradiction that has haunted Lebanon: the para- dox of a national unity in a multi-religious society wherein religion is inscribed as the citizen’s most important public attribute—stamped prominently on his or her identifi cation and voter registration card’. 73

Sectarianism emerged as the ‘dark deviant underside of the nationalist nar- rative’, 74 in the crisis of 1958, 75 and featured in the Lebanese civil war, where the ‘problem’ of sectarianism ‘had painfully acquired more than pure academic signifi cance’. 76

1.1 Civil war

Th e civil war, which began in 1975 and continued to 1990, resulted in an esti- mated 100,000 deaths and raised comparisons with other protracted confl icts that were ostensibly fought on ethno-religious grounds. Yet, ethno-religious divi- sions do not fully explain the genesis of confl icts such as these. Like other states to emerge from decolonization, Lebanon’s exogenously created borders both divided groups between states and also included myriads of groups divided on ethno-religious fault-lines that contained divisions within divisions. In this frac- tured state, the question should not have been whether confl ict could be kept latent but, rather, when it would emerge.

When it did ignite, the war appeared to unfold on confessional lines. 77 However, the reality, as in most confl icts, was more complex. Th e colonial divide-and-rule legacy left Lebanon’s political foundation ill-equipped to absorb the much larger Arab–Israeli confl ict that would be parked at its Southern door. As a result of this confl ict Lebanon became home to approximately 150,000 Palestinian refugees in the wake of the 1948 confl ict (a fi gure that blossomed to some 400,000 by the 1970s). It has been argued that a more stable state may have been able to contain and mediate the issues accompanying the refugee fl ow. Th at remains unclear. It is hard to imagine that the extent of the Diaspora, and the proxy war that would

⁷¹ Makdisi (n 6) 24. ⁷² Ibid. ⁷³ Ibid. ⁷⁴ Ibid 26. ⁷⁵ Although it is contested, Salabi argues that the confessional colours of the rebels played a part

in the crisis (some would argue revolution) of 1958, see K Salabi ‘Lebanon Since the Crisis of 1958’ (1961) 17(1) Th e World Today 32–42, 33.

⁷⁶ Weiss (n 2) 149. ⁷⁷ Th e often sectarian nature of the confl ict would give rise to comparisons with the Balkans and

Northern Ireland, where killings were undertaken along religious lines.

Minority Rights in Lebanon344

unfold as a result, would not have tested even the most stable regime. In the end, Lebanon’s fragile and elite-dominated coalition proved vulnerable to the divi- sions that the Palestinian crisis would expose.

Independent Lebanon replicated previously established consociational arrangements, which cemented rather than assimilated ethno-religious diff er- ences. Executive power remained in the hands of political elites with a Christian President, a Sunni Prime Minister, and a Druze Foreign Minister. Th is arrange- ment was able to accommodate the competing interests of each group at a superfi cial level. Lebanon embarked upon a laissez-faire economic policy, which brought economic prosperity for some, and a relatively liberal social policy. However, the crisis that unfolded in 1958 did not just highlight the growing political and economic disenfranchisement of the urban and rural poor, largely comprising the country’s Shi ‛ a population, from the Maronite and Sunni elite. It also exposed a Lebanon that looked, on the one hand, to the West as Christian leaders were keen to embrace the Eisenhower doctrine and, on the other, to the East, with a signifi cant part of Muslim civil society in Lebanon fi nding appeal with pan-Arab nationalism. Th e ethno-religious cleavages that underpinned the fault-lines in Lebanese civil society also prevented the development of a national identity; Lebanon was a state without a nation.

Th e seeds were therefore sown long before the 1975 confl ict erupted. Th e spark that set the tragic events in motion was clashes between the Christian Phalangist forces and Palestinian paramilitants. Th e protracted confl ict that ensued, must be understood in that wider context. Th ese clashes exposed, as had the 1958 disturbances, how political elites had attempted to divorce themselves from the realities of geography. Th at geography refused to allow Lebanon to divorce itself from the Arab–Israeli dispute or the Israeli–Palestinian confl ict that captured the political landscape of the region for years to come. Th e clashes subsumed and channelled issues that were as much about governance in Lebanon as they were about the presence of Palestinians. Whilst the Sunni–Maronite coalition may have shared an indiff erence to the Arab–Israeli confl ict and the Palestinians within their borders, they diff ered sharply on how to handle the crisis, with the Maronites favouring a military response, which no Sunni leader could endorse. Th e coalition fell under the weight of its own indecision coupled with probable external intervention on the part of Syria, which allegedly provided succour to Palestinian militia and to pan-Arab factions within Lebanon.

Th e protracted nature of the 15-year civil war did not just refl ect the intran- sigence of the Palestinian question but was also fed by competing views of what type of nation emerge. Once the gates were open, a ‘meta’ confl ict ensued. Palestinians continued their off ensive against Israel with the rhetorical support of the Arab world and the tangible support of the Syrians, who fought a proxy war against Israel through Palestinian militia and the Shi ‛ a Amal. Palestinians were also engaged in an internecine battle leading to the expulsion of the Palestinian Liberation Organization’s leader, Yasser Arafat, and the Fatah militia in 1982. Israel, with its own trained and armed proxy forces, the South Lebanon Army

2 Identifi cation of Minorities 345

(SLA), a Christian militia, 78 retaliated, resulting in partial occupation and then full intervention in 1982. 79 Add to this a third layer of inter-factional fi ghting between Christians and Muslims and Shi ‛ a and Sunni, coupled with the emer- gence of a number of militias (which would eventually control each of the seven separate zones that would carve up the Lebanese landscape), and we are some way to understanding the protracted nature of the confl ict.

With the failure of Pax Syriana , 80 the 1990 Ta’if Peace Agreement fi nally brought an end to the confl ict. Th e Agreement did not remedy what would remain an endemically divided society. Arab intervention and war-weariness were two main factors in ending the confl ict. A Charter of National Conciliation was devised to rectify what were seen as imbalances in representation among the varying groups, largely resulting from gerrymandering. Implementation of the charter proved problematic with signifi cant Christian opposition, which felt its elite position threatened.

Perhaps ironically ‘wartime sectarianism’ in Lebanon loosened social boundaries and proved ‘sect transcending’. 81 Yet the recalibration between elite and non-elite that took place during the war was, in post-war Lebanon, re-submerged in the poli- tics of the past. As Makdisi eloquently notes, ‘[t]he Lebanese state has been resur- rected, but as in the pre-war period it is again paralyzed by elite feuds and the neglect of the ordinary citizens, nearly a third of whom are estimated to live in poverty’. 82

Whilst Syrian and Lebanese writers have, in the second half of the nineteenth century and the early decades of the twentieth century, been keen to bury sectar- ian identities within a pan-Arabian identity, 83 this successful bid by Lebanon’s elite to hold on to power through ‘the manipulation of group identities and legitimizing creeds’ 84 suggests the failure of transcending sectarian identity cleav- ages. As identity markers remain relevant in Lebanon, section 2 will briefl y survey the ethnographic dimensions of Lebanon’s social landscape.

2 Identifi cation of Minorities

In commenting on the issue of ‘minority status’, McDowall states:

. . . Th ere is not a single resident in Lebanon who cannot, in one sense or another, truthfully claim to belong to a minority. It is the confl icting aspirations and fears of these diff erent

⁷⁸ To complicate matters further, the SLA were themselves engaged in a struggle with the Druze. ⁷⁹ Th e invasion by Israel into Lebanon began on 6 June 1982. It was referred to in Israel as

Operation Peace of the Galilee. Th e invasion was ordered as retaliation for the assassination of Israel’s ambassador to the United Kingdom, Shlomo Argov, by the Abu Nidal Organization.

⁸⁰ Th is was a concept that originally referred to the potential of Syria to create peace in Lebanon as a result of diplomacy and military strength. Contemporaneously, it refers to a term used in US circles that means the reshaping of the Middle East.

⁸¹ Makdisi (n 6) 26. ⁸² Ibid. ⁸³ KM Firro, Metamorphosis of the Nation: Th e Rise of Arabism and Minorities in Syria and Lebanon,

1850–1940 (Sussex University Press 2009). ⁸⁴ Y Gotlieb, Self-Determination in the Middle East (Praeger 1982) 142.

Minority Rights in Lebanon346

components of Lebanese society confi ned in a small and rapidly urbanizing area which lie at the heart of the continuing crisis in Lebanon today. 85

Population demographics are extremely controversial issues in Lebanon. Th e main reason for this is the historical premise negotiated in the aftermath of the fi rst Lebanese Constitution of 1926. Th ese negotiations, completed in 1943, resulted in what is referred to as the ‘Pact of National Understanding’—a tacit agreement between elites of the two largest groups in Lebanon, the Maronites and Druze. With the immense stakes and the implications of population fi gures, these are, consequently, often hard to fi nd for contemporary Lebanon. In dis- cussing the history of the region, Hourani engages in a population comparison between Syria and Lebanon. Th e Syrian fi gures 86 have been refl ected in chapter 5. For Lebanon, the fi gures make for interesting reading. In the lead-up to the Pact of National Understanding the breakdown was as follows:

⁸⁵ D McDowall, Lebanon: A Confl ict of Minorities (Minority Rights Group International 1996) 7. ⁸⁶ Derived from AH Hourani, Syria and Lebanon: A Political Essay (Oxford University Press 1946)

121; Hourani derives this from the census of 1932, which is produced with commentary in SB Himadeh, Economic Organization of Syria (Beirut 1936) 408–9.

⁸⁷ See Himadeh (n 86) 408–9. ⁸⁸ Th ese fi gures are listed by Hourani as offi cial, but no citation is provided. Th ere are also key miss-

ing data points such as the numbers for the Syrian Christian communities, and it is not clear whether

Community Numbers 1938 87 Numbers 1943 88

Muslim Sunnis 175,925 222,594

Shi’is 154,208 200,698

Druzes 53,047 71,711

Subtotal 383,180

Christian Maronites 226,378 318,201

Greek Orthodox 76,522 106,658

Greek Catholics 45,999 61,956

Syrian Orthodox (Jacobites) 2,574 na

Syrian Catholics 2,675 na

Armenian Orthodox (Gregorians) 25,462 58,007

Armenian Catholics 5,694

Assyrians and Chaldaean Catholics

528

Protestants 6,712

Subtotal 392,544

Jews 3,518

Miscellaneous 6,301 6,596

Total Population 785,543 1,046421

2 Identifi cation of Minorities 347

Th e groups conspicuously absent in Lebanon, as compared to Syria, are the Alawites and Ismailis (among Muslims); and Roman Catholics of the Latin rite, among the Christians. On the other hand, the fi gures reveal the clear numerical dominance of the Maronites, accounting for over 28 per cent of the population. Th e Sunnis, from the coastal plains, were the next biggest group and accounted for 23 per cent of the population. However, the Christian–Muslim dynamic is tempered by a strong Shi ‛ a presence of nearly 20 per cent. Th is scenario indicates how diff erently the politics of numbers operates in the Middle East. Th e strong inter-group rivalry between the Shi ‛ a and Sunni sects ensured division, with the result that the most dominant group was Christian. In overall numbers Muslims constituted nearly 49 per cent of the state while the Christian population of the state was closer to 50 per cent. 89

Th e territorial adjustments made by the French to the sanjaq of Mount Lebanon augmented the territorial dimensions of the state, but also signifi cantly impacted the population dynamics within. In and around Mount Lebanon, the population, as refl ected above, was mostly Christian and Druze. However, in coastal towns such as Tripoli, Tyre, Sidon, and parts of the Beqa ‛ Valley, large segments of Sunni Muslims were incorporated into the state, in addition to Shi ‛ a, Greek Catholics, and Orthodox, and an Armenian population, all of whom were long-term residents of Beirut. 90

Th e Christian hegemony in Mount Lebanon was contested by a numeri- cally inferior, but nonetheless well-established and confi dent Druze community, that played ‘at least an equal and sometimes a greater part in the history of the Mountain’. 91 In fact, it could be argued that the dynamic that existed between the Maronites and the Druze in Mount Lebanon is what made Lebanon diff erent from other parts of the mandated territories in the Middle East. Th is ‘specifi c Lebanese tradition’ is:

. . . a tradition of asylum: remnants of sects and tribes, driven for one reason or another from the plains of the interior, have found refuge in the previously almost impenetrable valleys of Lebanon, where they could worship and live unmolested from outside. Th e various communities which have established themselves there have usually respected one another’s beliefs and ways. Th ere have been tension and suspicion between them (sic), but in normal times they have lived peaceably together. It is true that for generations Lebanon was torn by internal strife, but it was the strife of factions and families. It was only for a short time during the nineteenth century that it took the form of a reli- gious war, and even then the fundamental causes were social and political rather than religious. 92

the fi gure attributed here to miscellaneous was simply presented as ‘minorities’—so it is not clear whether it includes the Jewish population of Lebanon. See AH Hourani (n 86) esp 303–7.

⁸⁹ For more on each of the sects, see ibid 122–31. ⁹⁰ Ibid 129. ⁹¹ Ibid. ⁹² Ibid.

Minority Rights in Lebanon348

Hourani also emphasizes that the concept of autonomy was central to this emer- ging tradition, one whose external acceptance is refl ected in the extent to which the communities were left unmolested by generations of rulers that occupied the central portions of the region:

Caliphs, Crusading rulers and Ottoman Sultans alike refrained from demanding more from Lebanon than tribute and the formal recognition of their suzerainty. Th ey left the internal aff airs of the Mountain to the care of local dynasts, more often than not members of local landowning families. Often Lebanon was partitioned between more than one of these dynasts; but on occasion a ruler succeeded in uniting the whole Mountain and even in extending his sway beyond it. His rule over the Lebanese, however, was never absolute. 93

Th e societies that were developing were feudal, and leadership and clan identity became hereditary, resulting in myths surrounding great families, such as the Maanis and the Shihabis, which dissuaded outsiders from attempting to chal- lenge their hegemony. Th is system survived until the onset of Ottoman rule. But even after the arrival of the Ottomans, the developing millet (confessional) system maintained the strong identities that already existed in society.

Th e ‘confessional system’ is fundamental to an understanding of how minori- ties are identifi ed in Lebanon. Its origins can be found in the Ottoman view of the empire as a religious state, where the Sultan’s mandate was derived from his role as the temporal and spiritual head of the population. 94 Since the Ottomans were Muslim, the law administered was law derived from Islam and not consid- ered as applying to non-Muslims. 95 Th us non-Muslims lived within the Ottoman Empire under the direct protection of the Sultan but were not really considered members of the political community. Christians and Jews, thus, needed to have autonomous communitarian structures ( ta’fi yya ) administered under their own religious laws especially in the areas of personal and property matters, including the administration of education through special religious schools. 96 As narrated elsewhere, those Muslim sects who did not conform to the orthodox Sunni faith of the rulers (especially the Shi ‛ a and the Druze) were not given special treat- ment, but placed under the jurisdiction of the Sunni, with their diff erent inter- pretation of the religion not offi cially accepted. 97

By far the most dominant group in Syria and Lebanon were the Sunni, with the Christians forming the largest religious minority. Th e Mount Lebanon area had the highest concentration of sectarian minorities, historians attribute this to the policy of the Lebanese hakims , notably Shihabi, who encouraged religious

⁹³ Ibid. ⁹⁴ B Aral, ‘Th e Idea of Human Rights as Perceived in the Ottoman Empire’ (2004) 26(2) Human

Rights Quarterly 454–82. ⁹⁵ Ibid 456. ⁹⁶ For instance, in 1843, the Jesuits opened a school in Ghazir in Mount Lebanon, which set the

tone for religious infl uence of Christians in education, see Firro (n 83) 58–64. ⁹⁷ Hourani (n 86) 130.

2 Identifi cation of Minorities 349

minorities and political refugees from Syria to settle within his jurisdiction. 98 Th e largest presence of the Maronites in Mount Lebanon was probably due to the active role played by the Maronite Church from the seventh century onward. Th e Druze community was the second largest community, and, though offi cially under the jurisdiction of the Sunni, doubts and suspicions existed as to the extent to which they could be considered truly ‘of the faith’. Th e Druze community remains a classical kin-minority, straddling the southern part of Mount Lebanon as well as the western Syrian provinces of Hawran and Jabal al-Duruz. Mount Lebanon was also home to signifi cant communities of Shiite Muslims, Greek Orthodox, and Greek Catholic communities. As described by Weienberger, the gradual change from a ‘feudal’ to a ‘confessional’ order was accompanied by a change in society-wide structures:

In the earlier phase, horizontal (socioeconomic) cleavages prevailed, refl ecting distinctions between the dominant feudal lords and their tenants. Vertical (sectarian or confessional) cleavages only gradually became politicized, emerging as the most salient social divisions in Mount Lebanon by the mid-nineteenth century. Th e interplay between the two dimen- sions of social cleavage ultimately exploded in civil strife. Social unrest was fi rst sparked by horizontal cleavages within the Maronite community, challenging the bases of the feu- dal order. In later decades, socioeconomic grievances were overshadowed by intersectarian strife. 99

Overall, the identifi cation of minorities in what subsequently became Lebanon was the result of acquired power by communities that had succeeded in gain- ing the allegiance of other feudal overlords, with the diff erent groups coming together to form clans based on the notion of shared sectarian kinship. A fi nal factor in the identifi cation of the minorities of the day was the extent to which sect-based identities were compounded by the boundary changes imposed as Lebanon emerged into independence. As McDowall notes:

Th e international boundaries of Lebanon [in 1996] are only 63 years old and would have been unrecognizable to an Ottoman citizen. Until 1920 Lebanon meant the moun- tain range only, inhabited predominantly by Maronites in the north and central sectors and by the Druzes in the Shuf, with some Greek Orthodox and Greek Catholic villages also. Th e Druze and the Maronites shared a fi erce desire for freedom from interference from their neighbours on the surrounding plains and from interference from Ottoman government. 100

Irrespective of positions in ‘high politics’, transnational links between the com- munities on either side of the border continued to grow. Th us the Lebanese Druze in the mountains maintained strong links with the Druze in the Syrian south, with similar ties of kinship between the Christians and Sunni Muslims on either

⁹⁸ Th e policies of this ruler are addressed by Hourani (n 42) 1–4. Also see Longrigg (n 40) and AL Tibawi, Modern History of Syria (Macmillan 1969) 19–21.

⁹⁹ Weinberger (n 26) 35–6. ¹⁰⁰ McDowall (n 85) 9.

Minority Rights in Lebanon350

side of the border. Also unsurprisingly, in view of the troubled history and com- plex mixture of populations, both states faced regular sectarian strife throughout the twentieth century.

3 Rights of Minorities

In most countries, the constitution forms the basis from which rights are derived. However, in the context of Lebanon, it becomes equally important to under- stand the inter-sectarian bargain referred to as the ‘National Pact’ or the ‘Pact of Co-existence’, which was based on the results of the last offi cial census con- ducted in 1932. Th e prominence for the national pact is also made explicit in the Lebanese Constitution in Part I(j) where it states: ‘Th ere is no constitutional legitimacy for any authority which contradicts the “pact of communal coexist- ence” [ mithaq al-aysh al-mushtaraq ]. Th is Constitutional Law shall be published in the Offi cial Gazette.’ 101

Th e original pact was modifi ed by the Ta’if Agreement of 1989, which pro- vided signifi cant recognition to the Shi ‛ a. Th is document occupies a pre-eminent position as referred to in the Constitution. It is clear that the original national pact laid the foundation for the Lebanese state and, despite its obvious drawbacks in creating an unstable state, its principles were retained in the Ta’if Agreement that ended the Lebanese civil war in the 1980s and re-established the principles on which Lebanon would be governed. Th e latter document was adopted by Lebanese delegates in Ta’if, Saudi Arabia in 1989, under the auspices of the Arab Summit of Casablanca (23–26 May 1989). 102 Th e foreign ministers of Morocco, Saudi Arabia, and Algeria formed the Arab Higher Tripartite Committee and presented the document on 31 July 1989. Th is was modifi ed and presented to Lebanese deputies in Ta’if on 30 September 1989 in the aftermath of the cease- fi re. Th e document provides a comprehensive legal framework, encompassing signifi cant domestic change and managing the relations of the state with Israel and Syria. 103 Th is section, therefore, commences with an analysis of Ta’if in the fi rst subsection, followed by an articulation of the rights’ architecture as captured in the Constitution. Th e section ends by examining the details of the Election

¹⁰¹ Constitution of Lebanon (1926), Preamble (j). Th e current English translation is derived from the International Constitutional Law Project: <http://www.servat.unibe.ch/icl/le00000_.html> accessed 24 May 2012; it is an annotated translation by PE Salem for the Lebanese Centre of Political Studies (cf Th e Beirut Review No 1/1991). Th is version consolidates all changes up to and including the Amendments of 21 August 1990 (signed into force 21 September 1990). Th at text is based on Th e Lebanese Constitution: A Reference Edition in English Translation by the Department of Political Studies and Public Administration at the American University of Beirut (1960), which draws on a 1973 translation by GM Bustros for the Bureau of Lebanese and Arab Documentation in London. ¹⁰² Th e Document of National Understanding (26 May 1989) as reproduced in J Maila, Prospects

for Lebanon: Th e Document of National Understanding: A Commentary (Centre for Lebanese Studies 1992). ¹⁰³ Ibid 2.

http://www.servat.unibe.ch/icl/le00000_.html

3 Rights of Minorities 351

Law, which, it could be argued, is fundamental as to the extent to which the rights of all citizens (minorities or other) are likely to be protected by the state.

3.1 Th e Ta’if Agreement

Th e Agreement commences by identifying certain ‘general principles’ that are important from the perspective of fundamental questions concerning national identity. One of the issues addressed directly is the dichotomy over identity. One general principle emphasizes, on the one hand, Lebanon as a ‘a defi nitive nation for all its sons’, 104 indicating an underlying equality between the sects and the individuals. While on the other hand, the ‘identity’ of Lebanon is identifi ed in the general principles as ‘a nation with an Arab face’. 105 In view of the history of crises between Christianity and Islam and the fault-lines among the sects, ‘Arab’ here is used as a unifying trait. Another principle, to be expected in the context of the obvious threat of separatism, is the principle expressing a commitment to maintain the state as ‘unitary’. One of the options, often considered in states that are multicultural or pluralistic, is for federalist principles to hold sway. 106 Th is was explored in some depth in the earlier chapter on Iraq. However, federalism in Lebanon faces two immediate practical problems: (a) the intertwined nature of the communities means that drawing sectarian-based federal structures would be immensely contested; and (b) federalism may segment the population further and risk the dismemberment of Lebanon.

Th e other principles stressed in the Ta’if Agreement include a commitment to ‘democratic parliamentary nature’, the promise to uphold freedoms and public liberties, and a commitment to regional development. Without doubt, the most important provision concerns an articulation of, and an adherence to the princi- ple of confessionalism. Th e document stresses that the principle was fundamental to the regulation of political society, by ‘stating that power cannot be legal if it contravenes the “Pact of Co-existence” or “the desire to live together” ( al aysh al-mushtarak ). Th e Taif Document, therefore, determines the nature of Lebanese society as a society of communities welded by their desire to live together.’ 107

Th e adherence to this principle was considered pragmatic at the time, since there was a bitter war to be ended. However, it remains at odds with the Lebanese constitutions examined later, which stress the elimination of the confessional system as a key national goal.

Th e articulation of general principles in the Agreement is followed by an artic- ulation of what are labelled ‘political’ and ‘other reforms’. Th e political reforms

¹⁰⁴ Ibid 5. ¹⁰⁵ Ibid 10. ¹⁰⁶ For a diff erent context, see the situation of Nigeria, VO Nmehielle, ‘Sharia Law in the Northern

States of Nigeria: To Implement or Not to Implement, the Constitutionality is the Question’ (2004) 26(3) Human Rights Quarterly 730–59. ¹⁰⁷ Maila (n 102) 17.

Minority Rights in Lebanon352

outline the composition of the Chamber of Deputies. Th e old power-sharing ratio of 6:5 in favour of Maronites came under intense discussion, owing to the changed composition of the demographics of the state. Yet, the formula was aimed more at maintaining parity between Muslim and Christian sects, while still enumerating each sect’s entitlement to Deputies. In addition, the position of the Speaker was strengthened considerably in an attempt to negate the executive power that was traditionally held by the Maronite President. 108 It was clear to drafters and negotiators that the only way to provide stability was the disman- tling of the system, a fact expressly conceded in Ta’if. But while this aspiration is made clear, no time limit was set, and, as a result, the Agreement simply adjusts the previous mechanism, while expressing an aspiration for its future disman- tling. Commenting on this, Maila stresses:

Th e Taif Accord . . . defi nitively retained the confessional solution. It nevertheless remains temporary since the Accord foresees an electoral law free from any communal reference (Point 5). In the mean time, parliamentary seats would be distributed according to three principles: equality among communities; proportional distribution within the two confes- sional blocks; proportional distribution between ‘regions’. 109

Donohue suggests that Ta’if succeeded in exchanging Syrian occupation for Syrian hegemony in Lebanon, thanks to the generosity of the Saudis and some backing from the USA, signalling a nominal shift of power from traditional to militia leaders, who were subsequently brought into government. 110 It needs to be noted, however, that this shift was superfi cial since many new militia leaders were off spring of the traditional governing elite.

Having established some framework through which to understand the impact of Ta’if, it is now important to turn to how this plays out against the Lebanese Constitution.

3.2 Th e Lebanese Constitution

While the original text of the Lebanese Constitution, articulated while under French mandate in 1926, did not survive Lebanese independence in 1943, the presidential and parliamentary structures envisaged continued to endure. In fact until the civil war of 1975, the country was held together by a combination of the 1926 Constitution and the oral agreement between elite Christian and Muslim leaders referred to as the ‘National Pact’ of 1943. 111 Th e lynchpin of

¹⁰⁸ Ibid 36. ¹⁰⁹ Ibid 21. ¹¹⁰ JJ Donohue, ‘Changing the Lebanese Constitution: A Postmodern History’ (2008–2009) 30

Cardozo Law Review 2509–34, 2525. ¹¹¹ C Mallat, ‘On the Specifi city of Middle Eastern Constitutionalism’ (2006–2007) 38 Case Western

Journal of International Law 13–58, 41. For a reading on the history of the Lebanese Constitution, see S Habachy, ‘Th e Republican Institutions of Lebanon: Its Constitution’ (1964) 13(4) American Journal of Comparative Law 594–603.

3 Rights of Minorities 353

this understanding lay in the interpretation of Article 95 of the original 1926 Constitution, which read: ‘As a temporary measure, and for the sake of justice and concord, the communities shall be equitably represented in public employ- ment and in the composition of the Cabinet, such measure however not causing prejudice to the general welfare of the State.’ 112 Th is version was amended on 9 November 1943 to read: ‘As a provisional measure and for the sake of justice and amity, the sects shall be equitably represented in public employment and in the composition of the Ministry, provided such measures will not harm the general welfare of the State.’

While the changes to Article 95 may seem cosmetic, the signifi cance of the change had direct impact on the abrogation of Article 96 on 21 January 1947. Article 96 had stated: ‘According to Articles 22 and 95, the seats of the Senate shall be distributed among the sects as follows: 5 Maronites; 3 Sunni; 3 Shi’is; 3 Orthodox; 1 Catholic; 1 Druze; 1 minorities.’

According to this formula, there would have been a constitutionally deter- mined proportional representation system in place, as an interim measure, until the dream of an undivided Lebanon could be realized. With the abrogation of Article 96, the formula for mutual co-existence is now contained outside the Constitution in political agreements such as Ta’if, discussed in section 3.1. Th is is also perhaps apt, since it could be argued that Lebanon’s fate lies more in the realm of political negotiation, rather than in legal prescription.

More generally, Mallat argues that one of the cross-cultural diffi culties that accompanied the arrival of western-style law, including human rights law to the region was the individual-centred focus of such law. 113 Th e Constitution itself has been labelled as seeking ‘communitarian constitutionalism’, 114 a feature many considered inevitable if eff ective governance was to be maintained over Lebanon’s disparate sects. 115 In the context of our comparative study, it is worth highlight- ing that the make-up of Lebanon’s sects is not dissimilar to the fractures in the Iraqi and Syrian identities, or, as Donohue puts it, these countries all have ‘an assortment of religious and ethnic communities’ 116 yet Lebanon is the only one to ‘provide express recognition for these in the constitution’. Commenting on the importance of Article 95 of the Constitution, Donohue highlights its historical relevance:

Early on, in 1915, when the French and the English were discussing the future shape of the Middle East, the French delegate, Georges Picot, insisted that Lebanon . . . should not be immersed in the projected Arab state. At the Peace Conference, Clemenceau honored the

¹¹² Constitution of Lebanon, Article 95 as amended. ¹¹³ Mallat (n 111) 48. ¹¹⁴ Donohue (n 110) 2509. ¹¹⁵ Th is challenge is particularly well articulated in M Hudson, Th e Precarious Republic (Random

House1968). Th e book was written prior to the outbreak of the civil war but clearly shows the fault-lines along which the war later mobilized. ¹¹⁶ Donohue (n 110) 2510.

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requests of the Lebanese delegation for a separate entity: Greater Lebanon. France, in fact, approached its mandates for Lebanon and Syria from a ‘communitarian’ perspective. 117

Th is clearly demonstrates the signifi cance of French ‘divide and rule policies’ which divided populations on the basis of their communitarian identity with a view to furthering interests of those outside the region. While the outcome of a separate Lebanon is clearly a manifestation of such policies, the communitarian system could also be viewed as a historical inheritance. As highlighted above and in earlier chapters, Lebanon had long established such principles of governance, with vestiges of the current system visible in the Ottoman Caimacamate govern- ment (1842–1860) and in the subsequent Mutassarraffi ya period (1861–1915). 118 In each case, the system that existed had some legitimacy, drawing on the wishes of the local population, and the laissez-faire attitude of the Ottomans. By con- trast, these schisms in local identity were exacerbated by colonialist policies moti- vated by needs other than the wishes of local populations. Commentators seeking to understand the communitarian pact between Christians and Muslims within Lebanon in 1943 highlighted that the ‘solution’ of division of this nature was never likely to provide stability since it attempted a compromise that involved the ‘Lebanonization of Muslims and the Arabization of Christians’. 119

In the context of the Constitution and the provisions of Article 95, in particu- lar, immense pressure was put on the passage of relevant electoral laws, which ultimately became a key ground of contestation that could easily be manipulated by the Maronite President. Th e Ta’if Agreement’s attempt to curb the executive power of the President by creating an alternative political power in the personage of the Speaker was one attempt to ensure a degree of parity in this power strug- gle. Th is interplay between the Maronites and Druze, despite the presence of signifi cant other groups, raises questions about the extent to which the Lebanese model of communitarian constitutionalism could be relevant for other states, not least Iraq and Syria. One oft-repeated justifi cation for the acceptability of viewing Lebanon from the strict Maronite–Druze prism is that these communities were fi xtures in the context of the history of Mount Lebanon, with others coming within its geographical ambit with the expansion, by the French, of Lebanese borders (this had particular impact on the Sunni, who had the strongest ties to Syria). 120 Th is raises questions of indigeneity that are extremely diffi cult to unravel elsewhere, 121 but particularly in the Middle East. Th e Ta’if Agreement and the Constitution stress that rather than the notion of indigeneity, ‘all sons

¹¹⁷ Ibid. ¹¹⁸ Ibid. ¹¹⁹ A comment attributed to E Rabbath, La Constitution Libanaise: Origines, Textes Et Commentaires

(Publications de l’Universit é Libanaise 1982) 121, translation by JJ Donohue (n 110) 2510. ¹²⁰ Donohue (n 110) 2513. ¹²¹ For more on this issue, see J Waldron, ‘Redressing Historical Injustice’ in LH Meyer (ed), Justice

in Time: Responding to Historical Injustice (Nomos Verlagsgesellschaft 2004) 55–77 and ‘Indigeneity? First Peoples and Last Occupancy’ (2003) 1 New Zealand Journal of Public and International Law 56–82; A Ward, National Overview , vol II (GP Publications 1997) 255–78.

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of Lebanon are recognized as equal’. Th is is made explicit in part one of the Constitution, where among the fundamental principles are two that outline, in particular, the aspiration of the drafters. Th ese are contained in subsections (c) and (i), respectively:

Lebanon is a parliamentary democratic republic based on respect for public liberties, espe- cially the freedom of opinion and belief, and respect for social justice and equality of rights and duties among all citizens without discrimination.

And:

Lebanese territory is one for all Lebanese. Every Lebanese has the right to live in any part of it and to enjoy the sovereignty of law wherever he resides. Th ere is no segregation of the people on the basis of any type of belonging, and no fragmentation, partition, or colonization. 122

Th e emphasis on the ‘equality of rights and duties . . . without discrimination’ appears to be recognized as the aspiration, with the confessional arrangement providing the necessary transitional arrangement. Th e clause concerning no seg- regation in (i) is also signifi cant in emphasizing two key aspects to the vision of a united Lebanon: fi rst, that there ought to be a complete freedom of movement, undermining the tight-knit territorial bases of the various communities, espe- cially in the mountains; and secondly, that safeguards are needed against frag- mentation, partition, or colonization. Th us the Constitution seeks to articulate a long-term vision of equal rights and equality of opportunity as a guarantee to the various communities of Lebanon.

Like the 1926 document, the Constitution is divided into six parts. Th ough there have been various textual changes, the underlying ethos has remained rela- tively unchanged. Th us Article 9, concerning the freedom of conscience origin- ally stated:

Th ere shall be absolute freedom of conscience. Th e state in rendering homage to the Most High shall respect all religions and creeds, and shall guarantee under its protection the free exercise of all religious rites provided that the public order is not disturbed. It shall also guarantee that the personal status and religious interests of the population, to whatever religious sect [millat] they belong, shall be respected. 123

Th is provision was strengthened by amendment and now reads:

Liberty of conscience is absolute. By rendering homage to the Almighty, the State respects all creeds and guarantees and protects their free exercise, on condition that they do not interfere with public order. It also guarantees to individuals, whatever their religious alle- giance, the respect of their personal status and their religious interests. 124

¹²² Constitution of Lebanon. ¹²³ Ibid Article 9 as amended. ¹²⁴ Ibid.

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Th e key diff erence is the reference to God, which, as in the context of discus- sions of the Iraqi Constitution, may be indicative of regional custom. 125 In any case, Article 9 highlights the issue of sectarianism, recognized explicitly in the old Article 9, while referred to as ‘personal status and . . . religious interests’ in the new.

Th e study of minority rights law involves understanding the extent to which groups within a state have autonomy to conduct their aff airs and maintain their identity. Th e provisions of Article 10 are thus of fundamental importance. Th is article, entitled ‘Education, Confessional Schools’ states:

Education is free so long as it is not contrary to public order and to good manners and does not touch the dignity of creeds. No derogation shall aff ect the right of communities to have their schools, subject to the general prescriptions on public education edicted by the State. 126

Th is provision has considerably fewer qualifi cations than in most states, where religious education is often not state funded, or where it is, only religious educa- tion of the majority community is funded. Th e autonomy that Lebanon’s sects have become accustomed to is maintained through the educational system, with all institutions qualifying for governmental support as long as they do not con- travene public order. Th e second caveat introduced is intriguing since it appears to rule out avowedly secular schools, since it is conceivable that such secularity constitutes a direct challenge to ‘the dignity of the creeds’.

Th e other articles that provide insight into the Lebanese systems for guar- anteeing the rights of minorities establish institutions, among them, the Constitutional Council, the Senate, and the National Committee. Each body is set up through inter-sectarian bargaining, and, thus, the terms refl ected in the Constitution set the framework within which all rights (minorities and others) are constrained.

Th e Constitutional Council is established by Article 19 of the Constitution, which states:

A Constitutional Council shall be established to supervise the constitutionality of laws and to arbitrate confl icts that arise from parliamentary and presidential elections. Th e President, the President of the Parliament, the Prime Minister, along with any ten

¹²⁵ For more on the value of the development of regional custom and its relationship to universal cus- tomary international law, see DJ Bederman, ‘Acquiescence, Objection and the Death of Customary International Law’ (2010) 21(1) Duke Journal of Comparative & International Law 31–46; O Elias, ‘Th e Relationship between General and Particular Customary International Law’ (1996) 8(1) African Journal of International and Comparative Law (1996) 67–88; F Talaie, ‘Th e Importance of Custom and the Process of Its Formation in Modern International Law’ (1998) 5 James Cook University Law Review 27–45 and AT Guzman, ‘Saving Customary International Law’ (2005) 27(1) Michigan Journal of International Law 115–76. ¹²⁶ Constitution of Lebanon, Article 10 as amended.

3 Rights of Minorities 357

Members of Parliament, have the right to consult this Council on matters that relate to the constitutionality of laws. Th e offi cially recognized heads of religious communities have the right to consult this Council only on laws relating to personal status, the freedom of belief and religious practice, and the freedom of religious education. Th e rules governing the organization, operation, composition, and modes of appeal of the Council will be decided by a special law. 127

Th e body is envisaged as providing religious leaders the right to petition the Council on a range of issues pertaining to personal status. Th is acts as a peti- tion mechanism where community elites could directly impact the legislative agenda of the state, usually by restricting its infringement of personal status laws. Th e strength of the Constitutional Council, which may be comparable to Singapore’s Presidential body on Minority Rights, 128 could act as a tourni- quet on the role of the Senate itself. Th e composition of this body is enshrined in Article 22, which states: ‘With the election of the fi rst Parliament on a national, non-confessional basis, a Senate shall be established in which all the religious communities are represented. Its authority is limited to major national issues.’ 129

Th e Parliamentary election held on 7 June 2009 and a proposal to put forth a new electoral law before elections in 2013 suggests that Lebanon is, at least in part, moving closer to, ‘the abolition of political confessionalism’. 130 However, realizing this goal fully depends on reform of the electoral system. Currently, the old electoral system continues to endure. Article 24, which lays down the basic provision for the electoral law, states:

1. Th e Chamber of Deputies shall be composed of elected members; their number and the method of their election shall be determined by the electoral laws in eff ect. Until such time as the Chamber enacts new electoral laws on a non-confessional basis, the distribution of seats is according to the following principles: a. Equal representation between Christians and Muslims. b. Proportional representation among the confessional groups within each religious

community. c. Proportional representation among geographic regions.

2. Exceptionally, and for one time only, the seats that are currently vacant, as well as the new seats that have been established by law, are to be fi lled by appointment, all at once, and by a majority of two thirds of the Government of National Unity. Th is is

¹²⁷ Ibid Article 19 as modifi ed by the Constitutional Law of 17 October 1927 (Article 50) and the Constitutional Law of 21 August 1990. ¹²⁸ See J Castellino and E Dominguez Redondo, Minority Rights in Asia: A Comparative Legal

Analysis (Oxford University Press 2006) 230–1. ¹²⁹ Constitution of Lebanon, Article 22 as modifi ed by the Constitutional Law of 21 August

1990. To date, the Senate has not been established. ¹³⁰ Ibid subparagraph h as amended. Th e next Parliamentary election is due to be held in June

2013, followed by a Presidential election in 2014.

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to establish equality between Christians and Muslims as stipulated in the Document of National Accord [the Ta’if Agreement]. Th e electoral laws will specify the details regarding the implementation of this clause. 131

As highlighted earlier, the emphasis on the Electoral Laws in the determination of the power structure for Lebanon has made this one of the most hotly contested aspects of its politico-legal structure. Parliament passed the 2008 Election Law. Th is law remains in place to date and is discussed in some detail in the next section.

A further provision that should be emphasized is Article 95, concerning the National Committee. Th is article was modifi ed from the original text by the constitutional law of November 1990. 132 It highlights that the fi rst Chamber of Deputies is to be elected on the basis of equality between Muslims and Christians, and requires this body to take appropriate measures to realize the abolition of political confessionalism. Th e article also highlights a ‘transitional plan’ meant to operate in the interim period. According to Article 95 the National Committee consists of the President of the Republic (who also acts as its head), the President of the Chamber of Deputies, and the Prime Minister, who are envisaged as par- ticipating alongside ‘leading political, intellectual, and social fi gures’. 133 Th e man- date of the Committee is identifi ed as studying and proposing means to abolish confessionalism, propose the necessary changes to the Chamber of Deputies and the Ministers, and then to also supervise the execution of transitional plans. 134

With the aspirational content of Article 95 clear, more attention needs to be paid to the objectives to be fulfi lled in the transitional phase. Article 95 states the following:

a. Th e confessional groups shall be represented in a just and equitable fashion in the for- mation of the Cabinet.

b. Th e principle of confessional representation in public service jobs, in the judiciary, in the military and security institutions, and in public and mixed agencies shall be cancelled in accordance with the requirements of national reconciliation; they shall be replaced by the principle of expertise and competence. However, Grade One posts and their equivalents shall be excepted from this rule, and the posts shall be distributed equally between Christians and Muslims without reserving any particular job for any confessional group but rather applying the principles of expertise and competence. 135

With overt political emphasis placed on the formula through which the govern- ance structure will be built, the Election Law becomes a key battleground for the

¹³¹ Ibid Article 24 as modifi ed by the Constitutional Law of 21 January 1947 (Article l) and the Constitutional Law of 21 August 1990. ¹³² Reference to note attached to the article in the constitutional text. ¹³³ Ibid Article 95 as amended. It is worth noting that the National Committee has not, to date,

materialized. ¹³⁴ Ibid. ¹³⁵ Ibid.

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various communities. Section 3.3 analyses this important facet of the political system through the lens of this law.

3.3 Lebanese Electoral Law

Th e Lebanese Constitution and Electoral Law refl ect what Arend Lipjhart refers to as consociationalism. 136 Th e basic idea behind this tenet is the sharing of power between two groups that are nominally, equally dominant.

In the context of the Electoral Law, this is explained in the following terms:

Th e Parliament consists of 128 deputies, a four year mandate in each term. In keeping with the need for balance article 2 of the Lebanese Electoral law refers to the division of these seats among confessions on the basis of electoral districts. Th e naming of these districts is contained in an annex and forms an integral part of the law. 137

Electoral districts are determined in accordance with Article 78, which states:

Th e electoral district shall be divided, by the Minister’s decision, into a number of polling centers ( markaz ) including polling stations ( qalam ). Each village incorporating 100 to 400 registered voters shall be entitled to one polling station. Th e number may increase to more than 400 voters per station if deemed necessary for the smooth running of the electoral process; however it shall not exceed 800. Th e number of polling stations shall not be more than 20 in one polling center. Th e Minister’s decision regarding the distribution of polling stations shall be published in the offi cial gazette and on the Ministry’s website 30 days at least before polling day. Such a distribution may not be modifi ed during the week preced- ing the polling day unless for serious reasons and under justifi ed decision. 138

Voters within a district are expected to vote for candidates from within their district only, 139 and provision is made for the disqualifi cation of some from what is otherwise general universal franchise. 140 In addition, Article 11 provides for a supervisory commission on the electoral campaign with overall responsibility to monitor the electoral process. 141 Provision is also made for elections to be fol- lowed and monitored by non-governmental organizations provided they fulfi ll the terms of Article 20 of the Electoral Law. 142

¹³⁶ A Lijphart, Democracy in Plural Societies: A Comparative Exploration (Yale University Press 1977) and Th inking about Democracy: Power Sharing and Majority Rule in Th eory and Practice (Routledge 2008); D Horowitz Ethnic Groups in Confl ict, (University of California Press 2000). ¹³⁷ Republic of Lebanon, Parliamentary Election Law (Law No 25) Baabda, 8 October 2008,

Article 1. ¹³⁸ Ibid Article 78. ¹³⁹ Ibid Article 2B. ¹⁴⁰ Ibid Article 4. ¹⁴¹ Ibid Article 11. ¹⁴² Ibid Article 20 states: ‘Competent civil society organizations may accompany and observe the

elections provided that they fulfi ll the following conditions: Th e organization should be Lebanese, non-political and non-profi t, having duly lodged its articles of incorporation three years, at least, before the request fi ling date; It should neither be connected to any political side or party nor have any candidate running for elections in its administrative board; Its statutes should specify, for the last

Minority Rights in Lebanon360

Due to its complex nature, the confessional system relies heavily on the pre-preparation of electoral rolls of those determined eligible to vote in the elec- tions. Th e provisions vis- à -vis the discharge of this function are identifi ed in chapter 4 of the Electoral Law. Article 26 is a key provision in this regard, as it establishes a role for a General Directorate of Personal Status, which is charged with preparing:

. . . for each electoral district, automated voters’ rolls including the voters’ names according to the personal status records. Th e said rolls shall include the names of all voters registered in the electoral district from at least one year as of the date of revision of the voters’ rolls, i.e. as of the 5th of December of every year. 143

Among the details collected by the General Directorate of Personal Status are: the voter’s full name and mother’s name, registration number as per personal status records, sex, date of birth and the individual’s declared confession. 144 Th ese fi gures are updated by the Offi ce on an annual basis ensuring the necessary dele- tions and insertions are carefully recorded. 145 To enable the offi ce to maintain its list, heads of regional registration offi ces and departments across the country are required to submit information between 5 December and 5 January each year. Th is information consists of: (1) the names of registered persons legally eligible for registration in the voters’ rolls; (2) the names of those accepted to become eligible by the closing date of voters’ rolls; (3) the names of persons omitted or deceased or crossed off the personal status records for any reason whatsoever. 146 Th is information must necessarily include the names of those within the disquali- fi cations identifi ed by Article 4 of the Electoral Law. 147

Th is detailed information alongside that from other sources such as the judiciary, 148 enables the General Directorate on Personal Status to publish voter lists by 1 February with room for the noting of any changes and the reasons thereof. Th e lists compiled are disseminated across Lebanon and Lebanese embassies for verifi cation. Th ese lists are open to scrutiny by individuals and may be challenged or corrected by 10 February each year. Th e changes requested

three years at least, objectives on the promotion of democracy, human rights, elections, transparency, or training related to these issues; Th e organization’s members should not be less than 100 at the request fi ling date pursuant to lists duly submitted to the concerned public authorities; Its adminis- trative board shall abide by a Code of Ethics established by the Ministry of Interior and Municipalities hereafter called “Ministry”; Th e Ministry shall examine the received accreditation requests and verify the fulfi llment of the conditions above. It may accept or revoke the request. In case of acceptance, the Ministry shall determine the procedures and mechanisms of accompanying and observing the elec- tions under decisions issued by the Ministry one month at least before polling day.’ ¹⁴³ Ibid Article 26. ¹⁴⁴ Ibid Article 27. ¹⁴⁵ Ibid Article 28. ¹⁴⁶ Ibid Article 29. ¹⁴⁷ Ibid Article 30. ¹⁴⁸ Mandate defi ned in Article 31, ibid.

3 Rights of Minorities 361

fi nally yield a list of voters by the 10 March, which is then considered absolute. In addition further scrutiny is allowable by the Directorate General of Political Aff airs and Refugees. 149 However, the voter list gleaned through this compli- cated process does not yield the electoral list, which remains the prerogative of the Registration Committees that have been created by the Electoral Law under Article 38. According to this article each electoral district is required to have more than one registration committee, consisting of:

. . . an active judge (as president), one of the heads or members of the municipal councils in the electoral district and one employee from the Directorate General of Personal Status (as two members). One or more employees from the Directorate General of Personal Status shall be annexed to each registration committee by decision of the Minister. 150

Th e mandate for these registration committees are identifi ed in Article 39:

Th e registration committee shall:

1. Examine and make decisions on the requests for voters’ rolls rectifi cation as per the provisions of the present law, and forward them to the concerned persons and the Directorate General of Personal Status. Such decisions are appealable before the com- petent higher registration committee mentioned in the present law within fi ve days of notifi cation by means of a duty-free petition. Th e appellant shall be exempted from retaining a lawyer.

2. Receive the elections’ results upon the closing of polling stations, revise the minutes and documents, and take appropriate decisions in this regard. Count and tabulate the results of each candidate and submit them to the presidents of competent higher registration committees. 151

To guarantee further scrutiny, the Electoral Law also makes provision for a Higher Registration Committee, stating that:

Th e Ministry shall appoint a higher registration committee for each electoral district. Each higher registration committee shall comprise a consultant from the Court of Cassation or a presiding judge of the Court of Appeal (as president), an active judge and an inspector from the Central Inspection bureau (as two members), and the head of the registration offi ce or any head of department or employee from the Directorate General of Personal Status (as reporter). 152

Th is Committee receives ‘the records of results submitted by all the registration committees of the electoral district, along with related documents and attached tables of results’. 153 In addition, this Committee is also given powers to ‘revise

¹⁴⁹ Ibid Article 37. 150 Ibid Article 38. ¹⁵¹ Ibid Article 39. 152 Ibid Article 40. 153 Ibid Article 42.

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the said documents, correct data and counting mistakes, if any, and correct the results accordingly’. 154

Th e long legacy of foreign powers is acknowledged in the prohibition on candidates receiving external monies to fund their campaign. According to Article 56(2), ‘[o]nly Lebanese natural or legal persons may off er contribu- tions for a candidate’s electoral campaign’. 155 In addition, the law strictly pro- hibits candidates from ‘accepting or receiving, whether directly or indirectly, contributions or aids from foreign states or from a non-Lebanese natural or legal person’. 156

Ever sensitive to the possibility of the election campaign raising sectarian ten- sions among communities, the Electoral Law makes special provision to guarantee against such an occurrence. In the midst of more general exhortations concerning the fairness of media representation, Article 68(4) states:

During the electoral campaign, the audio-visual media, lists and candidates shall abide by the following obligations:

Refrain from any act of libel, slander and defamation towards any list or candidate. – Refrain from broadcasting anything that might trigger religious/confessional/eth-– nic sensitivities or acts of violence or riots, or support for terrorism, crimes, or sabotage. Refrain from broadcasting anything that might be a means of pressure, intimidation, – mistrust, allusion, disbelief, or promise of material or in-kind benefi ts. 157

It is clear that the complexity of the Election Law is geared to provide a sys- tem of maximum scrutiny for the process of generating an election and a voter list, but the overtly complicated process indicates how the various interests in Lebanon view the election stakes. It could be said that this law seeks to erect one of the world’s most complicated structures through which to monitor an electoral process.

4 Remedies

It has to be outlined at the outset that the discussion of remedies in the context of Lebanon’s fractured identity is one that has engaged many Lebanese writers over the years. 158 Th e thrust of this writing is focussed on upholding the vision of an undivided Lebanon with autonomy for diff erent communities, coupled

¹⁵⁴ Ibid. ¹⁵⁵ Ibid Article 56(2). ¹⁵⁶ Ibid Article 56(3). ¹⁵⁷ Ibid Article 68(4). ¹⁵⁸ In addition to sources already listed above, in the specifi c context of remedies, see L Abul-Husn,

Th e Lebanese Confl ict: Looking Inward (Lynne Rienner 1998).

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with a strong supervening national identity to prevail over narrower versions. In this section we off er four remedies that are germane. Th e fi rst is with respect to the fundamental issue of sectarianism and confessionalism. Th e second is a com- mentary on the extent to which consociational or deliberative democracy is likely to yield eff ective results. One tension that exists within Lebanese society is the extent to which secularism (at least in the public realm) could provide an ena- bling environment to reduce heightened sectarian awareness. Th e third subsec- tion examines the extent to which non-sectarian institutions could contribute to the upholding of a strong national identity, while the fi nal subsection examines how this debate has played out in the rights-based context by focussing on an attempt to create a uniform civil code on marriage.

4.1 Sectarianism and confessionalism

Sectarianism ( ta’ifi yya ) and confessionalism are intrinsically linked in Lebanon with the former providing the basis on which the latter system works. While the rights of religious minorities in the Ottoman period were discussed earlier, it is worth remembering that Christian and Jewish millets did not attain the powers of their Muslim brethren until the passage of the Law of 2 April 1951, in the after- math of Lebanese independence. Prior to passage of that law, the communities were even more dominated at grass-roots level by zu’ama (chiefs or bosses) with an almost unquestionable political and religious stranglehold over the local peas- antry or urban constituencies in a system that could be described as neo-feudal. 159 In this context the growth of the confessional system needs to be understood, to assess the extent to which it provides a real ‘remedy’ to the intractable prob- lems of the co-existence of diff erent identity-based groups in Lebanon. Koury describes confessionalism as:

. . . a political arrangement whereby diff erent ethnic and religious groups (confessions) are balanced to perpetrate the status quo. Th e history of confessional Lebanon is paradoxical: members of various confessions were persecuted and forced to leave their national homes and to make the rugged mountains of Lebanon their shelter, but the persecution they suf- fered in common did not bring them together. 160

Koury argues that the system is based on the history of persecution of minorities, which ultimately established a pluralistic society on Mount Lebanon beginning in the fi fteenth century. 161 Th e various persecuted communities lived alongside each other but seem to regard each other with hostility, leading to an uprising of the ‘common people’ or ammiyyah in 1820. 162 Th is resulted in the expulsion of

¹⁵⁹ For more see S Zuhur, ‘Empowering Women or Dislodging Sectarianism? Civil Marriage in Lebanon’ (2002) 14 Yale Journal of Law & Feminism 177–208, 179. ¹⁶⁰ Koury (n 8) 2. ¹⁶¹ Ibid. ¹⁶² Ibid.

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Bashir II from Mount Lebanon, drawing international actors in support of one or the other of the communities that they considered, in some way, their kin. Among the communities supported in this way were the Druze (Great Britain) and the Maronites (France), as discussed above. Th e main purpose of this sup- port appeared to be, on the one hand, to protect communities from civil strife and, on the other hand, to curtail Ottoman infl uence on Mount Lebanon. 163 In any case, the result of the uprising in 1820 and another in 1840 signalled the end of the Chehabi dynasty (1697–1841), which had sought to unite the various communes living on Mount Lebanon. 164 Th e power vacuum was soon occupied by the Ottomans who partitioned the territory into two cantons under separate governors ( kaymakam ): the southern province with a Druze governor and the northern province with a Maronite governor. 165 Th e governance of the cantons was undertaken through a council constituted of 12 seats, subdivided between ‘sub-communes’, among them: Druze, Greek Catholic (Melchite), Greek Orthodox, Maronite, Shi ‛ a, and Sunni. 166

Th is system was based on the key principles:

(1) the importance of wide political participation to ensure adequate governance;

(2) the principle of shared responsibilities for the governance of the canton; (3) the innate equality between the confessions, irrespective of numeric

strength.

From the outset therefore, the system went against stronger minorities, treating them on par with smaller, numerically less signifi cant groups. Th e strength of the strongest group was refl ected in the choice of overall leader–the governor. Th us rather than compromising the strength of the most numeric group, it acted against medium-sized groups, by weighting them equally with smaller groups. Th is system managed to survive until another bout of disagreements led to civil strife in 1859–60. 167

Th e British and French intervened on behalf of the Druze and Maronites respectively, and engaged in a process that ultimately yielded the Reglement Organique (1861) guaranteed externally through the signatures of Austria, Britain, France, Prussia, Russia, and the Porte. Th is made Lebanon a unifi ed autonomous Ottoman province with a Christian governor appointed through the consent of the signatory powers and backed by a central administrative council or majlis consisting of 12 elected members. 168 Rather than engaging the previous system

¹⁶³ Ibid. ¹⁶⁴ See P Hitti, Lebanon in History (St Martin’s Press 1956) 3–10. ¹⁶⁵ Koury (n 8) 3. ¹⁶⁶ For more on this, see KS Salibi, Maronite Historians of Medieval Lebanon (Catholic Press 1959)

23–87. ¹⁶⁷ Koury (n 8) 3. ¹⁶⁸ Th is is discussed in greater detail by L Meo, Improbable Nation: A Study of Political Development

(Indiana University Press 1965).

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of numeric parity between communes, the system designed to elect the majis was based on population numbers for the various sects. Th us, four seats were reserved for Maronites, three for the Druze, two for the Greek Orthodox, with one each for Greek Catholic, Sunni Muslim, and Shi ‛ a Muslim. Th e central authorities were also assisted by seven district-level provincial sub-governors, with the dis- tricts confi gured on the basis of the prevalent religious confessions within each. 169 Th is arrangement brought peace to the region until the outbreak of World War I, when Mount Lebanon was subsumed under direct rule of the Ottoman Empire. Defeat for that empire resulted in the division of the entire region between Britain and France. As indicated earlier, Lebanon and Syria became French mandates in 1922, with the French gradually changing the dimensions of what was previously Mount Lebanon to include coastal cities as well as the Beqa ‛ Valley. As Philip Hitti highlights, the additional territory was predominantly Muslim, aff ecting its coherence and ‘internal equilibrium’. 170 Th is equilibrium shift was caused by the particular inclusion of a large number of non-Druze Muslims rather than the general increase of Muslims, since it changed the population dynamics of the country from that point onward. It also laid the foundation for a religious divide between Muslims (Druze, Sunni, and Shi ‛ a) and Christians (Maronite, Orthodox, Melchite, and Armenian).

Th e contemporary confessional system in Lebanon was based on the unwritten national pact known in Arabic as al-Mithaq al-Watani negotiated in 1943 and refl ected in Article 95 of the 1926 Constitution of Lebanon, which states: ‘for the sake of justice and amity, the sects shall be equitably represented in public employment and in the composition of the ministry, provided such measures will not harm the general welfare of the State’. 171

As Koury remarks however, this provision was merely a refl ection of the unwritten al-Mithaq al-Watani , which was aimed at maintaining the balance of power within the state: ‘Ethno-religious (confessional) equilibrium is equated with proportional representation in the Chamber of Deputies and in government according to the populations of the various ethno-religious subcommunes.’ 172

According to the agreement, this equilibrium consisted of a relationship to be determined by a fi xed ratio: six Christians for every fi ve Muslims as discussed above. Lebanese Christian interpretations of this ‘fi xed ratio’ viewed it as a per- manent defi ning structure for the state. However, against this, the ratio can equally be viewed as a refl ection of the population dynamics of the time. With the Muslim population now more dominant in Lebanon, pressure came to bear on making sure that the ratio refl ected contemporary population dynamics. Th us the dispute was between two interpretations of al-Mithaq al Watani : one that saw the actual ratios as central to the maintenance of equilibrium; against the other

¹⁶⁹ Ibid 35. ¹⁷⁰ Hitti (n 164) 491. ¹⁷¹ 1926 Constitution of Lebanon, Article 95. ¹⁷² Koury (n 8) 5.

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that saw the central feature of the agreement as the maintenance of equilibrium, with the ratios chosen refl ecting the combination that would achieve this at the time in question. According to the second interpretation, the ratios would need to change should there be a signifi cant change in population dynamics. Th ose who hold true to the fi rst interpretation argue that the pact was created to guard against change that may be brought about that would aff ect the equilibrium. Modern principles of democracy and participation, as well as the historical devel- opment of the system itself, with its precedent in the discarding of numerical strengths, indicate that the second interpretation would be more appropriate. However, rather than taking place in the courts, the dispute was ultimately a signifi cant contributing factor to the civil war that engulfed Lebanon from 1975 onward. 173

Koury’s engagement with the population dynamics of 1943 is worth recount- ing to understand the political realities behind the pact:

Th e national pact embodies the politics of accommodation. Th e embodied politics are the most obvious in the structure of the confessional decision-making body, which resembles a mosaic design of diverse and confl icting communal interests. At the time of independence, the Christian commune was in the majority and the Moslem commune in the minority, the fi xed ratio being 6:5. Within the Christian commune, the Maronites composed the largest sect . . . Consequently, the president of Lebanon must be a Maronite Christian. Within the Muslim commune, the Sunnites made up the largest group, so the premiership was allot- ted to a Sunnite Moslem. In numerical order of population, the third largest subcommune was the Shi’ites; thus the chair of the speaker of Chamber of Deputies was assigned to the Shi’ites. Nor did the confessionalism stop there; the Ministry of Defence . . . was allocated to the Druzes, and the Foreign Ministry to the Greek Orthodox. 174

Th is ‘politics of accommodation’ was also refl ected in the Chamber of Deputies itself, in keeping with the 6:5 ratio. Th us from 1960 to 1972, there was a con- fessional distribution of Deputies, which provided non-Muslim communities with the largest number of seats (55), with the Muslim community holding 45. 175

Interestingly from the perspective of this volume, one seat was reserved for ‘minorities’, yielding a grand total Chamber of Deputies of 99 members. 176 Th e confi gurations were also refl ected in subsequent Lebanese Parliaments from 1943 to 1961 with fi xed allocation for each of the principal communes: three positions for the Maronite and Sunni and two for the Greek Orthodox, Greek Catholic, Shi ‛ a, and Druze. With maintenance of communal identity such a central feature

¹⁷³ See Fisk (n 16). ¹⁷⁴ Koury (n 8) 5–6. ¹⁷⁵ Th e breakdown is as follows: Maronites 30; Greek Orthodox 11; Greek Catholic 6; Armenian

Orthodox 4; Armenian Catholic 1; Protestant 1; Sunni 20; Shi ‛ a 19; Druze 6. ¹⁷⁶ Figures as displayed by Koury (n 8) 7–8.

4 Remedies 367

of the system, Koury labels this the ‘politics of accommodation’ yielding the ‘pre- cise antithesis of the melting pot’. 177

In off ering insights into the success of the system, Koury suggests that rather than producing consensus and homogeneity, it aggravated political controversies, resulting in ‘vertical cleavages’ that have ultimately become obstacles to the devel- opment of horizontal stratifi cation. As a result, ‘[c]entral cultural values . . . are replaced by . . . poly-communal values’. 178

Th e confessional system has basically imposed obligations on commu- nity leaders, forcing them to cooperate and compromise with their counter- parts while maintaining allegiance to their communities. Th is has led to both inter-confessional cooperation as well as competition. 179 Th e system also has four fundamental characteristics: (a) permanence of power; (b) potential for confl ict; (c) the relativity of power; and (d) the non-coercive and coercive use of power as a goal for achieving objectives. 180

In the Lebanese context it is also impossible to imagine a ‘territorial solu- tion’ due to the intermixing of populations and the gravitation of communities towards the urban centres. Th e closest discussion to the geographic dimension of the sects is provided by Yamak:

. . . the traditional home of the Maronites has been and continues to be the Northern and middle parts of Mt. Lebanon. By contrast, the Sunnis are city dwellers and are therefore concentrated in Tripoli, the plain of Akkar in the North, and Sidon in the South. A large number of them live in Beirut, where they constitute a little more than a third of its popu- lation. Th e Shi’is traditional home is in the Eastern region of the Biqa’ Valley as well as in the Jebel ‘Amil in Southern Lebanon, while that of the Greek Orthodox is in al-Kura in North Lebanon. Th e Druzes have their traditional home in the mountainous region of the Shuf. Th e other communities, particularly the Armenians, are almost entirely concen- trated in Beirut which, because it is the centre of commerce and industry as well as of gov- ernment, has also attracted many members of various communities. In this respect Beirut’s population can be regarded as representing a ‘true’ cross-section of the total population of the country. 181

Ashour highlights that like Malaysia, in Lebanon the history and colonial legacy has contributed to a mixing of ethnicity, with the colonial powers’ preferential treatment of one group leading to schisms that are still visible in the national

¹⁷⁷ Koury (n 8) 7. For an insight into cabinet politics and how the system is impacted by identity, see E Salem, ‘Cabinet Politics in Lebanon’ (1967) 21(4) Middle East Journal 493. ¹⁷⁸ Koury (n 8) 9, drawing on the work of S Verba ‘Comparative Political Culture’ in L Pye and

S Verba (eds), Political Culture and Political Development (Princeton University Press 1965) 513–25. ¹⁷⁹ For more on the theory of consociationalism that underpins the system, see A Lijphart

‘Consociational Democracy’ in RJ Jackson and MB Stein (eds), Issues in Comparative Politics (St Martin’s Press 1971) 227. ¹⁸⁰ Koury (n 8) 20. ¹⁸¹ LZ Yamak, ‘Party Politics in the Lebanese Political System’ in L Binder (ed), Politics in Lebanon

(John Wiley & Sons Inc 1966) 144, as quoted in Koury (n 8) 64.

Minority Rights in Lebanon368

context. 182 Th e last offi cial census carried out in Lebanon was in 1932; however, since then fear on the part of the Christian Maronite population has prevented the organization of a subsequent census. 183

Clark refl ects on the confessional system, concluding:

. . . the Lebanese system is defi cient mainly because it is confessional. Th us, Lebanon’s con- fessional democracy and system-balancing mechanisms become a built-in obstacle to the building of a more developed order that would suit the norms of political development. Diversity has become a chronic problem that constitutes one of the greatest threats to the internal stability of Lebanon. Clash of ethnic identities between numerical minorities in the country has proven signifi cant in moulding its current political status. 184

4.2 Consociationalism or deliberative democracy?

Like Iraq, Lebanon displays the four symptoms suggested by political scientists as constituting severely fractured states: viz, (a) fragmentation along sectarian lines; (b) competing visions of statehood and national identity; (c) majoritarian policies that are meaningless and may be a hindrance; (d) questions over the fair distribution of resources among sectarian groups. 185 Against this backdrop, it is diffi cult to predict the extent to which any politically negotiated settlement is likely to create the necessary preconditions for the deep lesions in identity to heal. 186 While democracy is off ered as a panacea in such circumstances, Adeno emphasizes that it is in fact the inclusiveness of institutions that is a better gauge of the extent to which such societies can survive. 187 Summing up what could eas- ily be argued as the challenge in Lebanon, he states:

Th e central issue of institutional design in severely fractured societies is how to devise structures and processes that can simultaneously capture the biography of the entire people in its complexities and provide conditions for the reconstituting and retelling of that biog- raphy. Seeing the issue this way emphasizes both the social fact of divided loyalties as well as their susceptibility to rearrangement and transformation through sustained institutional engagement among the various groups. Th e social fact of divided loyalties and competing identities suggests that the legitimacy of those institutions positively correlates with their degree of inclusiveness. 188

¹⁸² S Ashour , Ethnic Politics and Policymaking in Lebanon and Malaysia: A Comparative Analysis of the Health Sector (Cuvillier Verlag 2004) 14. ¹⁸³ For more, see ibid 20–4. ¹⁸⁴ Ibid 21, citing J Clark, ‘Frequent Incompatibilities: Ethnic and Religious Diversity and the

Nations in the Middle East’ (2002) XXII Comparative Studies of South Asia, Africa and the Middle East 36–42. ¹⁸⁵ For a contemporary parallel in Iraq, see A Addis, ‘Deliberative Democracy in Severely Fractures

Societies’ (2009) 16 Indiana Journal of Global Legal Studies 59–83, 64. ¹⁸⁶ In this context, see generally SD Kaplan, Fixing Fragile States: A New Paradigm for Development

(Praeger Security International 2008). ¹⁸⁷ Addis (n 185) 60. ¹⁸⁸ Ibid 62.

4 Remedies 369

Of course in societies such as this, the remedy most commonly prescribed is consociational democracy, 189 with its various models drawing from Cyprus, 190 Northern Ireland, 191 Fiji, 192 and other jurisdictions. 193 As discussed by a range of writers, the model is premised on the growth of the elite in each community negotiating a workable settlement of co-existence with each other. Th e fact that the models often provide vetoes for minorities over key policy issues is trumped as making such a form of democracy a clear ‘alternative to majoritarian or aggre- gative democracy because it prevents perpetual domination of ethnic minorities by ethnic majorities’. 194 In addition, it is posited that consociationalism is prem- ised on the fundamental assumption that groups are organized along sectarian lines, and feel most comfortable when they see this organization being sustained into the future. Th e oft-repeated critique of the model is that it formalizes sec- tarian division and fails to provide incentives for parties and communities to work across sectarian divides. From the historical perspective of Lebanon it could be argued that, in many ways, consociationalism is no more than a mod- ern manifestation of the old Ottoman millet system, and, to this extent, the modern post-colonial state appears to have made little impact in modernizing and adopting a unifi ed national identity paradigm. While this failure could be attributed to respective colonial and post-colonial governments, the vola- tile situation on the ground has been an obvious tourniquet on any process that sought to unravel or challenge ancient identities and their accompanying hegemonies. As a result, these have persisted with little change, and have, in so doing, been absorbed into a consociational system based on legitimizing fi s- sures in identity, reifying them and holding them as the fundamental basis for identity within the state.

By contrast, Addis argues for what he calls the integrationist approach, with a view to breaking down the existing sense of community and creating a wider, more inclusive version of it. 195 He sees ‘deliberative democracy’ as a key tool in the process, yielding societies with inclusivist tendencies, driven by (legal and social) pluralism, that remain open to inter-sectarian dialogue. 196 However, it is in providing the fundamental tools for deliberative democracy in a country

¹⁸⁹ See n 179. ¹⁹⁰ C Yankinthou, Political Settlements in Divided Societies: Consociationalism and Cyprus (Palgrave

McMillan 2009). ¹⁹¹ J McGarry and B O’Leary, ‘Consociational Th eory, Northern Ireland’s Confl ict, and its

Agreement 2. What Critics of Consociation Can Learn from Northern Ireland’ (2006) 41(2) Government and Opposition 249–77. ¹⁹² See I Venkat ‘Enforced Consociationalism and Deeply Divided Societies: Some Refl ections on

Recent Developments in Fiji’ (2007) 3 International Journal of Law in Context 127–53. ¹⁹³ S Choudhry (ed), Constitutional Design for Divided Societies: Integration or Accommodation?

(Oxford University Press 2008), Part 2. ¹⁹⁴ Addis (n 185) 67. ¹⁹⁵ Ibid 68–9. ¹⁹⁶ Ibid.

Minority Rights in Lebanon370

such as Lebanon that the model begins to unravel and become unworkable. For a start, the process requires that all stakeholders are provided with free and equal powers to negotiate. When examined against the conditions articulated as cen- tral to deliberative democracy, its feasibility to Lebanon comes up against stark diffi culties. Th e three conditions identifi ed in the literature for such a system to work are: (a) full participation in the laws and the development of institutions; (b) the attempt to arrive at decisions through consensus building processes and reasoning; (c) the assumptions that all negotiators see the benefi t of engaging in such negotiation and wish its success. 197 Each of these conditions are diffi cult to foresee in Lebanon.

4.3 Th e establishment of robust national institutions

Th ere are many commentators who warn against the secularization of institu- tions as unworkable, and who describe this as an option that has been tried often but failed often. 198 Th e thrust of the argument in this subsection is that for a rights-friendly culture to be built, it is imperative that institutions are established at national level that are avowedly a-religious with a broad appeal to all seg- ments of the population, and which could not be identifi ed with a particular sect. Regarding the creation of such institutions, one of the most fundamental would be the body that supervises the complex electoral system that exists in Lebanon. A Supervisory Commission on the Electoral Campaign was created to oversee election campaigns as required by Article 11 of the Electoral Law. 199 Th is Commission, consisting of ten members, has its mandate outlined in Article 19 of the statute, which lists its tasks and prerogatives as follows:

1. Receive the requests of private printed and audio visual media wishing to participate in the paid electoral advertising pursuant to the provisions of this law.

2. Supervise the compliance of rolls, candidates, and mass media of any form whatsoever, with the rules and regulations governing electoral competition pursuant to the provi- sions of this law.

3. Supervise electoral spending pursuant to the provisions of this law. 4. Receive and audit the fi nancial statements of electoral campaigns of lists and candi-

dates within one month after the polling day. 5. Draw up a report on the Commission’s activities and forward it to the Minister who

shall submit it to the President of the Republic, Prime Minister and Speaker of the Parliament. Th e report shall be published in the offi cial gazette. 200

¹⁹⁷ Ibid 71. ¹⁹⁸ Makdisi (n 4). ¹⁹⁹ Republic of Lebanon, Parliamentary Election Law (Law No 25) Baabda, 8 October 2008,

Article 11. ²⁰⁰ Ibid Article 19.

4 Remedies 371

Th e creation of infrastructure of this kind to oversee the tasks of rebuilding soci- ety could act as a bulwark against future pressures or, as stated by Khalaf:

Impotent as the country might seem at the moment to neutralize or ward off . . . external pressures, there are measures and programs, already proved eff ective elsewhere, which can be experimented with. Th ese will at least fortify Lebanon’s immunity against the disruptive consequences of . . . destabilizing forces. Such eff orts can do much to reduce the country’s chronic vulnerability to these pressures while enhancing opportunities for empowerment and self-determination. . . . any form of voluntarism that can provide venues for participa- tion in public space and while nurturing some of the attributes of civility and collective consciousness will be welcome. Likewise, more accessible opportunities to participate in civic and welfare associations, competitive sports, rehabilitative ecological, environmen- tal, public-health, and heritage programs can also be invaluable as strategies for healing symptoms of fear, paranoia, and transcending parochialism. More substantive perhaps are the nascent prospects for public intervention in areas like urban planning, design, architec- ture, archaeological heritage, and landscaping. 201

Th ese measures are only likely to be successful, however, if facilitated through institutions that are avowedly ‘national’ and transcend sectarianism. Th is neces- sarily means that such institutions ought not to be associated with any religion, and, in this sense, must fall within the rubric of secularity. Th us ‘secularity’ is being used here as a concept more in line with that determined by the Indian Supreme Court, whereby secularity means religiously neutral, as opposed to being irreligious. 202

As Khalaf highlights, Lebanon’s daily cultural life demonstrates attempts in equal measure, both to remember the atrocities and enmities of the civil war, and to draw a line under them in order to move on. 203 For its institutions such schizo- phrenia would be unacceptable, suggesting that the religious neutrality of such institutions is likely to be a route with a higher percentage of success. Th e regen- eration of Beirut’s downtown area, with visible signs of modernity is a microcosm for what could be attempted with its institutions, even if this sanitizes society by introducing a modernity that sits uneasily against a rich but troubled history.

As indicated at the outset, Lebanon could probably be considered something of a Petri dish for pluralism. In Khalaf ’s words:

Lebanon’s troubled history with pluralism leaves little room for further experimentation. Of all encounters with many of its varied forms—coexistence, guarded contact, compro- mise, and integration—the political management of separate, exclusive, and self-contained entities has always been the most costly and short-lived. Expressed more concretely: if at times it has been diffi cult for the Lebanese to live together, it is extremely unlikely that they can live apart. Th e calls for cantonization, federalism, or other partitioning and disman- tlement schemes, like earlier such experiments, are byproducts of xenophobic fears and

²⁰¹ Khalaf (n 47) 305. ²⁰² Castellino and Dominguez Redondo (n 128) 79. ²⁰³ Khalaf (n 47) 307.

Minority Rights in Lebanon372

vengeful impulses. Th ey were impelled by a merging of parochial interests and short-term political expediency, not by genuine eff orts to coalesce identities. 204

Clearly the biggest fear for Lebanon lies in forces that push for what Khalaf labels ‘retribalization’. 205 In the context of engaging with Lebanon on its obligations to the Racial Discrimination Convention, the Committee on the Elimination of Racial Discrimination (CERD) expressed concerns over what it deemed ‘overall resistance and lack of progress’, 206 measuring this against the operations of secu- larized institutions. Th eir recommendation to the state was as follows:

Th e Committee recommends that the State party undertake a continued eff ort to moni- tor and review the situation and to take appropriate measures, including educational and legal measures, towards the gradual elimination of the system of political confessionalism in the spirit of the Taif agreement and the constitutional amendments, taking into account public views and feelings. 207

Th e lack of national institutions working on human rights issues has also been picked up at two specifi c junctures, which ought to be heeded. Th e fi rst concerned the lack of a mechanism through which complaints concerning the Convention could be processed. In addition to asking for more specifi c statistical informa- tion concerning prosecutions launched in respect of Convention rights, CERD stressed that:

. . . the mere absence of complaints and legal action by victims of racial discrimination may be mainly an indication of the absence of relevant specifi c legislation, or of a lack of awareness of availability of legal remedies, or of the insuffi cient will by the authorities to prosecute. It is therefore essential to provide for the relevant provisions in the national legislation and to inform the public of the availability of all legal remedies in the fi eld of racial discrimination. 208

Th e second and more important thrust is the need to establish a well-functioning national human rights institution. 209 At the time of writing such a commission/ institution has yet to be created, though its establishment was recommended by several states in the Lebanon’s Universal Periodic Review in 2011. 210 We would go a step further and argue that such a commission needs to be set up with a religiously neutral perspective if it is going to have the support of all the com- munities that make up the body politic of Lebanon.

²⁰⁴ Ibid 320. ²⁰⁵ Ibid 326. ²⁰⁶ Committee on the Elimination of Racial Discrimination, Concluding Observations on Lebanon ,

UN Doc CERD/C/64/CO/3, 28 April 2004, para 10. ²⁰⁷ Ibid. ²⁰⁸ Ibid para 14. ²⁰⁹ Ibid para 15. ²¹⁰ See Recommendation 80.8 and 80.9, Working Group Report on Lebanon, UN Doc A/

HRC/16/18, 12 January 2011.

4 Remedies 373

4.4 A uniform civil code on marriage?

Despite the stated national goal of eliminating political confessionalism, Lebanon has continued to survive as a ‘tribal-ethnic’ state, 211 with the long civil war having contributed to a de facto cantonization of communities. Th e civil war resulted in signifi cant movement where kin communities relocated to areas in which their community lived in numbers, and the newly augmented numbers renewed the zeal with which they would defend the physical and metaphorical boundaries of their enhanced communities. 212 One of the lesser addressed aspects of religious confessionalism is the imbalanced impact it has on the rights of women. With religious communities allowed to adjudicate on issues such as inheritance, mar- riage, and divorce, the discrepancies between communities are striking and most clearly visible as gender discrimination. While justifi cation for such distinctions are often that they safeguard fundamental aspects of religious personal law, they are in fact common to each other in that they are also manifestations of patriar- chal systems that have fl ourished over centuries. Th is is the only conclusion that can be drawn when the diff erential value of women’s testimony, her social status, and even the punishments meted out as ‘honour killing’ are studied. 213

Th e issue on civil marriage arose when draft legislation, running into nineteen pages, was submitted by then President Hrawi to his Cabinet on 2 February 1998 and put to a vote on 18 March 1998. Commenting on the Bill, Zuhur states:

. . . the proposed law dealt with several areas of personal status . . . [and] was actually far more ambitious than it was portrayed in many journalistic accounts of the campaign . . . Th e creation of a civil law for all Lebanese would have wrested the authority over defi nitions of marriage and divorce away from the religious authorities and their courts. Although the draft did not address all other areas of personal status, it could have led to future reforms of matters such as inheritance and custody. 214

Irrespective of its merits, the post civil war climate in Lebanon was dominated by political confessionalism, with sectarianism ‘the most potent political force in the country’: 215 which meant the prospects of it being adopted were slim. Zuhur highlights the united opposition:

Both religions authorities and political offi cials . . . have come to manipulate sectarianism for their own purposes, with the clerics regarding themselves as the most legitimate voice for their religious constituencies and as guardians of particular traditions which intertwine the religio-legal with the cultural. 216

²¹¹ See P Gran, ‘Organization of Culture and the Construction of the Family in the Modern Middle East’ in A Sonbol (ed), Women, the Family, and Divorce Laws in Islamic History (Syracuse University Press 1996) 70. ²¹² For more see Zuhur (n 159) 180. ²¹³ Ibid 181. ²¹⁴ Ibid 182. ²¹⁵ Ibid. ²¹⁶ Ibid 183.

Minority Rights in Lebanon374

Th e draft bill was never likely to remedy the discriminations and inequalities between men and women within the sects, but Zuhur believed that ‘it would have leveled the fi eld signifi cantly, allowing all citizens, irrespective of their reli- gious background, to follow the same procedures’. 217 While commenting more generally on the rights of women in Lebanon, Zuhur reveals another reason why the proposed legislation failed:

Traditional masculinizing and patriarchal features of Lebanese politics have impeded the progress of women in public life. When women were considered to be independent fi g- ures, not simply female proxies for male fi gures of power, they lacked appeal and public support. Women’s recent and quite modest political gains have been achieved primarily through identifi cation with the sectarian system. Th erefore, outside of the relatively small feminist community, women’s increasing political participation and knowledge of their political weaknesses did not aid the campaign for the civil marriage. 218

Zuhur also implies that one of the signifi cant criticisms from the clergy and politicians of the notion of civil marriage was the possibility of cross-confessional marriages, which would ultimately weaken the confessional system. 219 Th us despite popular support, 220 the bill was ultimately shelved.

Th is leads Zuhur to state:

. . . in . . . societies where religious rules have acquired strong legal, civic, and political meaning, legal reform eff orts have interesting implications. Th is disconnection between the processes of power based on gender and those based on religious affi liation tends to reinforce the tactical appeal of incremental initiatives . . . Finally, we may admit that legal reform in a multi-religious society may be more complex than like eff orts in more homo- genous societies . . . 221

Conclusion

Lebanon provides the backdrop to challenge a number of principles and beliefs considered settled in law and politics. Prime amongst these is the reliance on democracy as a form of governance most likely to yield a peaceful and prosperous state. 222 Another is the extent to which the ‘consent of the governed’ can form the basis for an unfractured, but accountable government working for the benefi t of all of its citizens. Lebanon also challenges the bounds of how human rights standards can be designed and implemented across a range of communities,

²¹⁷ Ibid 184. ²¹⁸ Ibid 188. ²¹⁹ Ibid 196. ²²⁰ For more on the manifestation of this, see ibid 202–5. ²²¹ Ibid 208. ²²² Th is has been addressed in several diff erent contexts in the Middle East in A Saikal and A

Schnabel (eds), Democratization in the Middle East: Experiences, Struggles, Challenges (United Nations University Press 2003).

Conclusion 375

how these communities gain access to the rights table, and the basis on which they can access these rights. Taken together, Lebanon challenges minority rights discourse; the justifi cation for minority rights and the danger of fragmentation undermining national unity provide a stark backdrop. In the Lebanese context, it is already diffi cult to determine who ought to be considered a minority. As a result it becomes increasingly diffi cult to understand what rights should fl ow from such determination. What is clear, though, is that the history of Lebanon and the various regimes in operation provide a model for minority rights scholars to study, to fully appreciate the extent to which easily repeated solutions such as ‘consociationalism’, ‘autonomy’, ‘deliberative democracy’, when prescribed in situations radically diff erent from those in which they developed, can become part of the problem rather than the solution.

Conclusion

Th e Politics of Sectarianism

On 9 October 2011, Egyptian Copts took part in a protest march from the Shubra Roundabout, in the Northeast of Cairo, to a state-controlled radio and television building in Maspero, close to Tahrir Square. Th e protests were sparked by the destruction of part of Marinab church in Aswan, a governorate in Upper Egypt, earlier that month. Th e destruction of the church was symbolic of a wider issue for Egyptian Copts; the need for legislative reforms in Egypt that would protect religious freedoms, both in practice and manifestation. Th ere were several accounts as to what happened in al-Marinab, but perhaps the most accurate ver- sion of the events was contained in a fact-fi nding report that was submitted to the former Prime Minister, ´Isam Sharaf, earlier that month. 1

Th e report challenged several ‘facts’ in the public domain. It rejected press reports and statements by local authorities, which indicated that the state had not issued a permit to rebuild the church. In fact, the report outlined that church leaders had sent a copy of the building permit to the Security Council of the Armed Forces (SCAF) and asked the Generals to intervene, as protests against the construction by residents of al-Marinab 2 were raising inter-communal tensions. Th e SCAF did not respond; instead, authorities within the province convened a reconciliation meeting during which church fi gures conceded to a number of demands including the shortening of the steeple. Despite these concessions, the church was subsequently torched and partially destroyed, along with other prop- erties belonging to the Christian population in Aswan.

Th ere was a performance by both state and local offi cials in the aftermath of the events. Despite the recommendations of the report that included a call for accountability, not just for the arsonists but for offi cials who created the condi- tions that triggered the actions, no action was taken. Instead, accusations that the fact-fi nding mission had rejected—that the building was a guest house (as opposed to a church), that the construction began without a permit and did not conform to the licence specifi cation—were presented as ‘facts’ that were played

¹ See M Tadros, ‘Egypt’s Bloody Sunday’, Middle East Report Online, 13 October 2011: <http:// www.merip.org/mero/mero101311> accessed 20 May 2012.

² Amongst the complaints by residents was that the building itself was never a church but rather a private residence that had been previously used as a resting stop ( istiraha ) and that the height of the steeple violated the dimensions permitted on the licence.

http://www.merip.org/mero/mero101311

Th e Politics of Sectarianism 377

out repeatedly in the public domain. Th e lack of accountability and the attempt to shift the burden of responsibility to church leaders sparked protests, mainly by the Coptic community, that began on 4 October and led to the tragic events in Maspero on 9 October. Th e timing of these protests, which occurred against the backdrop of the larger push for state reforms, ignited debate as to whether this sectarian agenda should have been raised at a time when the broader reform issues were unsettled. Yet, much more of the debate has centred on what occurred when protestors reached Maspero. Th ere are not just diff erentiated readings of the event itself, but also an attempt to exert hegemonic control over how this event was to be read into the larger political project that is unfolding in Egypt. 3 Should it be understood as an attempt by a religious minority to use the reclaimed public square to make a rights-based claim, an endeavour by a minority group previously excluded from sites of power to carve their identity into the emerging political community in Egypt? Or was the protest better read as Egyptians, mostly but not exclusively Christian, demanding basic human rights guarantees?

Th ere are only a few uncontested details as to what happened at Maspero— that there were 27 killed and, of these, 26 were Christian. Th at the narration of events, both on the night and in its aftermath, exposes the identity politics that are woven into the sociopolitical fabric of Egyptian society is clear. Yet, the poli- tics of sectarianism that framed the description of Maspero and earlier events in al-Marinab transcend the Egyptian polity, fi nding articulation in most other states in the region. Th e state response to Maspero, characterized by one commentator as ‘three D-words: denial, demonization of protestors and (specious) distribution of blame equally among the parties involved’, 4 played out in performances across the region, refl ecting a rootedness of the identity politics of the Middle East; a ready-made framework within which sectarian divisions are expressed.

As these chapters have detailed, one challenge in providing historical back- drops to still unfolding stories of state-crafting is that history itself remains a project, one in which there are competing claims to hegemonic discourse; the defi ning version of events that captures the social formation of a state. Yet, it is within these ‘memories of state’ and state-crafting that the politics of sectarianism were rooted, and against this backdrop that it became possible for the ‘Maspero incident’ to be re-narrated. Whatever the forensics of the event, these crafted explanations were grafted on to existing sectarian sentiments both within and across social divides, reigniting divisions and disrupting what had been, up until this time, a cross-cutting revolutionary project in Egypt.

³ See Op-Ed piece by R el-Khoury, ‘Th e Bleeding Egyptian Spring’ (12 October 2011) An-Nahar Lebanon 12 ( An-Nahar is noted as a pro-opposition publication); Op-Ed piece by G Sultan, ‘Th e loss of the misleaders and the extremists’ Al-Mesryoon daily (12 October 2011); leader by M Esmat, ‘Th e Maspero sedition’ As-Shorouk Egyptian daily (11 October 2011); lead editorial, ‘Th e honor of resigna- tion’ Al-Masry al-Yawm Egyptian daily (11 October 2011).

⁴ See Tadros (n 1).

Conclusion378

Th e meticulous unpackaging and reselling of the event was played out on two diff erent stages. Within Egypt, state offi cials, often through offi cial press chan- nels, extinguished threads of narratives to construct one particular (state) version of events. Externally, the incident was also used as a platform to reinsert notions of an ‘Arab street’ 5 into analysis of the Arab Spring. Much like the rootedness of sectarian sentiments within states, the protection of minorities, in this case reli- gious minorities, was now (re)inserted in an ethno-confessional model and sold externally. It is the images of Maspero, the exodus from Iraq of refugees (with an emphasis on the religious component), and the spectre of civil war in Syria and the potential threat to minorities (a message that has been so carefully cultivated and nurtured by the Asad regime) that frames the reporting of the ‘exceptional- ism’ of the Middle East, replete with violent geographies and intolerant ‘Islamic’ societies.

Tackling the question of minority rights in the Middle East cannot, therefore, be limited to an examination of the laws that seek to protect minority communi- ties. As we have detailed, there is a meta-narrative dimension to how minority communities are understood in the context of the Middle East that transcends the legal and intersects territorial, cultural, and political spaces. Whilst modern conceptions of minority rights, including religious, linguistic, and cultural rights, were not the paradigm in the early Ottoman period, it is only in revisiting the his- torical social formation of the multiple geographies of the Middle East that we can begin to understand the genesis of identity politics in the region. How a groups’ minority status was shaped in the historical formation of states in the region was examined in our overview of minorities in Chapters 2 and 3, and revisited in the specifi c context of Iraq, Syria, and Lebanon. As we have described, under the early Ottoman millet period, ‘the People of the Book’ (Christians and Jews) were granted limited collective autonomy over mainly personal status issues. Yet, the millet system did not intend to eradicate diff erence—both socially and politically non-Muslims were not treated equally to Muslims. Th is was eff ectively an illiberal pluralistic system; a hierarchy where Muslims occupied the highest position and diff erence was required to maintain political order and facilitate Ottoman rule over a diversity of communities.

Th e decline of Ottoman power and the ascent of European powers in the region would change the form, but not the substance of the status of non-Muslim communities. In the early part of European intervention in the region, the posi- tion and protection of Christian minorities was a key issue. With increased European presence, the Ottomans were forced to concede to some of their demands, even during the zenith of their rule. However, as Ottoman rule began to wane and European infl uence gained ascendancy, reforms, directed toward

⁵ Underpinning Western policies toward the Middle East since the 1980s, and perhaps even before that, is the narrated and oft-used concept of an ‘Arab Street’, characterized by ignorance, paro- chialism, and violence. Th e caricature follows that, in such a violent geography and democratically illiterate civil society, strong leadership is required to maintain order and regional stability.

Th e Politics of Sectarianism 379

primarily religious minority communities were instituted. Th ough these meas- ures were motivated less by the need to embrace concepts of rights and liberties, and more as an attempt to countermeasure the infl uence of foreign states, and to re-establish Ottoman control. Similarly, European intervention, ostensibly to protect Christian communities in the empire, was less an attempt to embed a liberal reading of pluralism into the polity or to promote religious tolerance, but rather refl ected the geopolitical struggles between Christian European states and the Ottomans. European rule in the region was characterized, fi rstly, by a mis- understanding of the nature of the various communities, secondly, by the domi- nation of the social space by questions of European states’ national interest and inter-European competition, and lastly by the bequest of a problematic territo- rial legacy, which remains one of the most signifi cant hurdles to communitarian cohesion in the region. During the decolonization period, the ‘divide and rule’ policies birthed as a result of each of the three factors listed above remained rooted in the modern states that emerged. Th e diff erences that refused to be eradicated through Arab nationalist agendas of the late nineteenth and early twentieth cen- turies as Ottoman rule declined, were renegotiated in constitutional mechanisms where notions of ‘majority’ and ‘minority’ were codifi ed.

How these diff erences manifest contemporaneously in the region varies. What our examination suggests, is that the correct point of departure when evaluating the status of minority rights in the multiplicity of geographies we refer to as the Middle East, is to begin with the question of state practice —both as to how states engage with the international community and related human rights discourse and, domestically, where practices cause a diff erentiation or social fact of minor- ity status. We have endeavoured to locate our examination of minorities in the region in the context of the interaction between the various sociopolitical groups that exist, assessing how they engage, or are excluded from sites of power. In so doing, we have sought to demonstrate the extent to which, in this region, as in other regions studied, minorities continue to face an uphill struggle in determin- ing the extent and mechanism of their engagement in society. Th e fact that this has come against the backdrop of a process of decolonization that was eff ectively hijacked by proxies for the former colonial powers has simply added an addi- tional dimension to the process.

Th e events of the Arab Spring, which provided the backdrop to the research for this book, are easily the most signifi cant region-wide outpourings of collective sentiment since the time of decolonization. Th ese events share common demands for the rule of law, for basic human rights, and for the accountability of leaders. Yet, rather than being celebrated as the hesitant fi rst steps of communities emerg- ing from decades of dominance, attention has focussed on the extent to which the events have been able to put forward coherent governance alternatives. Th us, the ‘failure’ of the revolutions to adapt to a particular script has, for some, reas- serted the notion of an ‘exceptionalist’ Middle East back into the public square. Th is has been achieved by focussing on sectarian divisions and inter-communal

Conclusion380

confl ict, such as Maspero, to highlight the spectre of disorder in the transition or in the case of failing regimes such as in Syria and Bahrain, to play a fi nal sectar- ian card.

Scholars of decolonization, probably the single greatest political transition in the previous century, will be accustomed to such fear-mongering. It was used by colonial powers to justify their hold on power. It is less that 50 years since we were warned of inevitable blood-baths in Africa and Asia should European pow- ers depart. More recently, such thinking dominated the transitions in Central and Eastern Europe. In those cases too, the fears portrayed were genuine. Yet, these were also accentuated to justify the continued presence of the status quo. While in both scenarios these objections were overcome as the transitions pro- ceeded, it is also important to note that they were rarely achieved without a degree of strife. It is also important to highlight that the state-building processes that have unfolded in the region continue to face numerous challenges. However unlike those transitions, what is distinct to the Middle East is the attempt to con- tinue to maintain a degree of hegemony while drawing on the rhetoric of democ- racy, accompanied by signifi cant external eff orts to channel change in directions desired by previous hegemons.

Determining just how Islam features within these political transitions—in how minority agendas are engaged, how political communities are formed, and the identity politics that have unfolded in virtually all states we have examined—is a complex but necessary task, and one we set out to tackle in our opening chapter. Th at Islam originated in the Arab world and is relevant at both a state and civil society level in the Middle East is not in doubt. As we argue, however, the mul- tiple geographies that characterize the Middle East house believers and practices that are also quite diverse. While being a Muslim has been presented, in some spheres, as a political act, for a majority of Muslims, it is a question of faith. Similarly, far from being fi xed, just how religion is engaged in the public sphere ignites vibrant and contentious debate. Th erefore, suggesting that there is a fi xed and stable understanding as to what it means to be a Muslim is to eradicate many threads of narratives that are clearly present throughout the Muslim world. Th is concerted focus on the region through the single lens of Islam obfuscates many non-Muslim identities, as well as strands of ethnic and linguistic identities that many communities—Muslim and non-Muslim—self-defi ne as politically impor- tant. We have sought to represent these various allegiances within communities as sometimes competing but almost always relevant, and have sought to off er a classifi cation of minorities that provides a greater insight into society than a single dimensional vision of the region as Muslim. As argued in our introduc- tion, clearing away the idea of one Arab street leaves open the possibility of many intersections, of diff erent dialogues emerging at the interface of faith and politics in the Middle East.

Against this backdrop, our analysis of how to understand and engage the concept of minorities in the Middle East departs from an understanding of the

Th e Politics of Sectarianism 381

‘Middle East’ as exceptional. Instead, we read the historiographies of the Middle East (past and present) as constructs. Th is approach lends itself to an understand- ing of the concept of minority rights as one of the many surfaces over which political contests are waged. Understanding and presenting this alternative focus has been particularly challenging when the written histories of the region are dominated by majoritarian or colonialist imaginings of states and communities. However, when various accounts of the region are analysed and distilled against the respective motivations for such accounts, a picture emerges that is relatively uncomplicated, and also rather unsurprising. It is clear that (like in every other region in the world) in the Middle East the relationship between minority (how- ever defi ned) and state, and also between majority and minority, can mainly be understood in terms of proximity to sites of power. Here, as we demonstrate in our overview of minorities, when challenged, minorities can fi nd creative ways to respond to shifting power alliances, sometimes through institutions and prac- tices, such as that of al-Taqiyya as in the case of the Druze, and, sometimes, as in the case of the Berbers, through revisionist historiography and mythmaking.

As we move from an overview of minorities in the region to more detailed studies, our examinations of Iraq, Syria, and Lebanon are stark reminders of the colonial present. Political sectarianism has been central to maintaining power in these polities. From Ottoman times to the present date, states have endeavoured to both deny and make use of ethno-religious divisions within their borders to maintain, consolidate, or wrest political control. Th e manner in which each of the three societies have used political discourses and legislative models provides a lens for the myriads of diverse post-colonial states who are struggling to build nations on physical parameters (territory) that are contested, and on which iden- tity has constantly been reconfi gured in relation to sites of power. Understanding how these fragmented identities on constructed territories can be engaged within a human rights framework is one of the most signifi cant challenges. Seeking to do this successfully in light of continued interference by previous hegemonic actors through proxy rulers has made the task almost impossible in each of the three states. However, irrespective of these challenges, at the heart of these state building projects, are issues such as the rule of law and respect for human rights. We are not predicting an end to violence in the short-term. Rather, we situate the violence that is occurring in these and other states in the region as a consequence of genuine demands for reform.

Th e political awakening of civil society that began with the Arab Spring of 2011 and was still unfolding during the writing of this book again challenges conventional presentations of the Middle East. Unsurprisingly, there are attempts to project a meta-narrative onto these revolutionary projects; to reinsert readings that we have challenged throughout this book. Th at these ‘new’ sociopolitical landscapes have a distinctly sectarian complexion is not in question, nor are the diffi culties that lay ahead as states strive to build inclusive political communities. Just how (or indeed whether) this can be achieved is, as we are reminded:

Conclusion382

. . . the same question [Butrus al-] Bustani grappled with 150 years ago. How do a people who share a land, customs, history and a language fi nd a common end? Th e task may be impossible, and societies may simply have changed too much to imagine reconciling faith and secularism. Th ere are too few voices within majorities off ering such a vision and too few leaders among minorities to articulate it. But all those years ago, Bustani had managed to imagine something diff erent, until the very day that he died, with a pen still in his hand. In the end, his idea was as simple as it was elegant: citizenship. 6

A simple idea perhaps, but it is one that lies at the heart of the political struggles that continue in many of the states in the region. It requires a reimagination of a political community that cuts across religious, political, and ethnic identities and expands the sociopolitical roof under which communities are housed. Th ese are the demands that have been raised as civil society across the region retake ‘public spaces, and [insist] that such belong to the public’. 7 Just how these democratic political enterprises will unfold remains uncertain. We argue that an inextricable part of this exercise is the right of people in the region to determine their own political futures. Th is does not suggest ignoring human rights’ concerns. Rather, that it is vital that the international community work with whatever regimes emerge in the Middle East, not condemn them ab initio because of the ideol- ogy they profess. Accepting any government that emerges out of free and fair elections held in the region is crucial, as it will, we argue, enable constructive dialogue concerning human rights problems that have, and are likely to continue to emerge.

Our focus in this book has enabled us to gain an insight into how minority communities are located within the emerging states. We hope to have demon- strated the extent to which these communities are socio-historic constructs; yet the extent to which they can be included in new structures, remain ultimate tests of both stability and inclusion. Clearly the challenges concerning the rule of law remain uppermost in many of the societies we have studied, and these issues aff ect all the residents of the states and not just minorities. In the fi nal analysis, as Shahid has reminded us, the pressures that currently exist in the Middle East concerning the building of stable societies can be best engaged through the val- ues of citizenship and inclusion that these revolutionary projects have embraced. Th ese remain, in our opinion, the only buttress against potential tyrannies of the majority.

⁶ A Shahid, ‘But hatred in the region isn’t inevitable’ New York Times (20 November 2011) SR6. ⁷ J Schwedler, ‘Forget the fi rst anniversary of the Arab Spring’ Al Jazeera (28 February 2012):

<http://www.aljazeera.com/indepth/opinion/2012/02/201222774440144769.html> accessed 29 February 2012.

http://www.aljazeera.com/indepth/opinion/2012/02/201222774440144769.html

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domain 14 Islamic minorities

Baha’is 135–6 Ismailis 138

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Algeria Berbers 169–71 distinct political and geographical

domain 14 interstate disputes 15 Jewish minority

presence within country 85 status within community 92–3

member of Arab Regional Order 13 Ammiyyah 363 An-Na’im, AA. 39, 47 Anderson, L. 46 Animists 173–4 Arab-Israeli confl icts

see also Palestinian-Israel confl ict abatement of hostilities in 1949 21 Egypt-Israeli War of 1967 21–2 Egypt-Israeli War of1973 22–3 impact of WWII 19–21 impact on political map of Middle East 14 Israel’s relationship with Lebanon 23–4 link with Lebanon 337 origins 18 overview 17 role of Britain after WWI 18–19 subsequent emergence of new alliances 14

ties with Palestinian refugees 155–6 Arab Regional Order 13 Arab Spring

continuing impact 381–2 Egypt

attacks of the Coptic community 121 notions of an Arab street 378 reason for focus 7 relations between Muslims and

Christians 98 Iraq 254 Morocco 98 signifi cance 379 Syria

importance of representation 318 opportunities for whole-scale change 305 pressure on rule of law 301 resulting concessions 255–6 revolutionary objectives 312

Armenians current status in Iraq 213 distinguishing features 83 Lebanon 346 part of Syrian Christian population 109–11 presence in Jordan 112 treatment in Iran 102

Ashour, S. 367–8 Assyrians

current status in Iraq 213–16 defi ned 109–10 eff ect of Ba ‛ thist ‘Arabization’ policy in

Iraq 200–1 forcible expulsion from Iraq 247–8 Lebanon 346 treatment in Iran 113

Babism 6, 127, 135 Baderin, M. 33 Baha’is

current status in Iraq 217 presence in region 135 relationship with Christians 114–15

Bahrain distinct political and geographical

domain 14 interstate disputes 15 Jewish minority

presence within country 85 status within community 86–7

member of Arab Regional Order 13 Shi’a majoritarian minority 179–81

Index

Index418

Baluchis overview 159 treatment in Iran 159–60

Bedouins form of lifestyle 165–6 Israel’s discrimination in Negev

Desert 166–8 regional human rights issues 166

Berbers composed of disparate groups 169 presence in region 168–9

Algeria 169–71 Libya 171–2 population in Morocco 172–3

Black Iraqis 218 Boundaries

attempts to redefi ne Middle East 13–14 cause of Arab-Israeli confl ict 17 conclusions 78 displacement and shifting demographics in

Iraq 246 dominance of European perspectives on

minorities 49 French division of Syria 307 historical development of Kurds 160–2 impact of colonization 14–15 Israel’s discrimination of Bedouins in Negev

Desert 166–8 Lebanon’s fractured landscape 336–7 ‘peculiarities’ of Middle Eastern geography

basis for secure route to India 11–12 meeting of continents 11 ‘shifting strategic concept’ 12 ‘theatrical stage affi xed to Europe’ 12

rationale for Egypt-Israeli War of 1973 22–3 role of confl ict in the shaping of the Middle

East 14 territorial autonomy for Syria 330 understanding the defi nition of Middle

East 1–2

Camp David peace process 23, 25–6 Capotorti, F. 51–3 Christians

clashes with Islam under Ottoman Empire 48

current status in Iraq 211–12 historical treatment by Islam 106–8 Israel’s relationship with Lebanese groups 23 Lebanon

civil war 1975–1990 344–5 hegemony in Mount Lebanon 347–8 Règlement Organique (1861) 364 table of comparisons 346 ties with Syria 349–50

legal protection within individual states Egypt 119–23

Iran 113–16 Jordan 112–13 Lebanon 123–5 Sudan 116–19 Syria 108–12

non-participation in Syrian uprising 130 politics of sectarianism played out at

Maspero 376–8 population throughout the region 108 refugees from Iraq 246–7 Syria

comparative fi gures for various groups 291–3

contemporary benefi ts of millet system 289

‘minority controversy of 1936’ 299–300

minority rights under Ottoman rule 269–76

pre-Ottoman history 266–8 Circassians 218, 297–9 ‘Clash of civilizations’ thesis 3, 29, 38 Cobo, M. 53 Colonization

‘divide and rule’ policies in Lebanon 354 dominance of European perspectives 49 impact on formation of Middle

East 14–15 importance of decolonization 380 Lebanon 335, 341–2 need to revisit historical background of

region 378–9 Syria 279–88

Commission on Human Rights 67–8, 301, 304–5

Comoros Islands 5, 14, 56 Confl ict

Arab-Israeli confl icts abatement of hostilities in 1949 21 Egypt-Israeli War of 1967 21–2 Egypt-Israeli War of1973 22–3 impact of WWII 19–21 Israel’s relationship with Lebanon 23–4 role of Britain after WWI 18–19

Iran-Iraq war impact on political map of Middle

East 14 role of confl ict 14 subsequent emergence of new

alliances 14 Lebanese links 337 Lebanon’s civil war 1975–1990 343–5 Palestinian-Israel confl ict

form of ‘meta-confl ict’ 24–5 Founding of PLO 25 introduction of ‘war on terror’ discourse

by Israel 29

Index 419

major events leading to current crisis 25, 25–8

role in the shaping of the Middle East Arab-Israeli confl icts 17–24 importance 14–17 Palestinian-Israel confl ict 24–8 war on terror 28–9

varied readings of Islam diff erent schools of Muslim

thought 35–6 diverse approaches to rights 39–41 evolutive approach to law 33–4 gender discrimination and slavery 41–3 infl uence of foreign cultures 34–5 interface between criminal law and

human rights 41 newly arisen concept of ijtihad 34 profession of faith 33 Sharî’ah and Fiqh distinguished 33 textual and literal jurists 36–9

Consociationism 240–1, 254, 259, 368–70 Contemporary alliances Copts

Egypt 119–20 politics of sectarianism played out at

Maspero 376–8 Sudan 117–18

Dar al-Islam 45 Davis, E. 182–4, 187, 188, 198, 201–2, 219,

221, 241 Dessoouki, A. 13 Dhimmis 41–2, 44, 47, 84, 102–3, 274,

288–9 Diya 42 Djibouti

distinct political and geographical domain 14

member of Arab Regional Order 13 Donohue, JJ. 352 Druzes

contemporary benefi ts of millet system 290 French division of Syria 307 Lebanon 346

historical backdrop 339–40 Règlement Organique (1861) 364 second largest community 349 ties with Syria 349–50

non-participation in Syrian uprising 130 origins and development 130–1 presence in region 131 questions over status 298 Syria under the Ottomans 268

Egypt backdrop to 1967 confl ict 22 declaration to ICCPR 66

distinct political and geographical domain 14

eff ect of 1949 armistice 21 interstate disputes 15 Islamic minorities

Baha’is 135 Druzes 130

Jewish minority presence within country 85 status within community 93–6

member of Arab Regional Order 13 politics of sectarianism played out at

Maspero 376–8 reservations to treaty-based law 60 status of Palestinian refugees 152, 157–8 treatment of Christian minority 119–23 visits from OHCHR 72

Ethno-national minorities see also ‘Trapped’ minorities Ahwazi Arabs 175–6 Animists 173–4 Bedouins

form of lifestyle 165–6 Israel’s discrimination in Negev

Desert 166–8 regional human rights issues 166

Berbers composed of disparate groups 169 ethnic mix in Algeria 169–71 population in Morocco 172–3 presence in region 168–9 treatment in Libya 171–2

constitutional protection Iraq 228, 231, 233

defi ned 51–4 overview 80–2, 141 presence in Iraq

Black Iraqis 218 Circassians 218 Faili Kurds 205–6 Kaka’i 206–7 Kursd 205–6 Marsh Arabs 210–11 Palestinians 219–20 Roma 220–1 Shabak 207–8

presence in Syria diffi culties of labelling 294–5

response to shifting power alliances 181 Turkoman 174–5

‘Exceptionalist approach’ to Middle East 9–11, 32, 78

External interference see also Colonization American interference in Iraq 223 application to minority rights 55 Christian denominations in Sudan 118

Index420

External interference (Cont.) competition among Western powers 321 continued interference by previous

hegemonic actors 381 eff ect of colonizing powers 120–1 impact on Iraq 249 ‘imperialism of interference without

responsibility’ 46 Khartoum regime in Sudan 174 Lebanon 349 legacy in Lebanon 362 Ottoman concerns 296 Ottoman millet system 185 roots of Arab Spring 254 Syria 298, 304, 319

Faili Kurds 205–6 Fiqh 33–5, 38 Foreign interference see External interference Formation of Middle East

attempts to redefi ne 13–14 basis for secure route to India 11–12 meeting of continents 11 role of confl ict

Arab-Israeli confl icts 17–24 importance 14–17 Palestinian-Israel confl ict 24–8 war on terror 28–9

‘shifting strategic concept’ 12 ‘theatrical stage affi xed to Europe’ 12

Fuqaha’ ashab al-hadith 36–7

Gaza Strip see also ‘Trapped’ minorities armistice agreement in 1949 21 intifada in 1987 26

Gender discrimination distinction between what the law requires

and how it is enforced 76–7 intersect with criminal justice 41–2 Iranian Constitution 114 Iraq 229, 231, 239 Lebanon 373, 374 relevance to minorities 41 Sharî’ah law 67 Syria 303, 317, 323

Gocek, FM. 271 Greek religious minorities 108–9, 346, 365